Neither Reasonable nor Necessary

(NOTE: This article is the full text of a rebuttal of an Op-Ed which appeared on Sunday defending the Chesapeake Police Department raid on the home of Ryan Frederick submitted to the Virginian Pilot which had to be greatly edited for printing.)

Former Norfolk Police Lieutenant Rue L. Bagwell asserts that the expedited forced entry search of Ryan Frederick’s home by the Chesapeake Police was reasonable and necessary , but those terms have specific meanings against which those actions should be measured.

The Fourth Amendment to our Constitution demands searches be reasonable. A factor in the common law meaning of ‘reasonable’ is the principle of ‘knock and announce‘ (Wilson v. Arkansas) which requires that the subject of a search be made aware of the presence of police and their intention to search, and that he be given sufficient time to compose himself, determine that the police are indeed present, and admit them peaceably to search. The purpose of that requirement is to avoid exactly the kind of confusion and violent confrontation which resulted in the death of Detective Jarrod Shivers.

Expedited forced entry for a search may be reasonable if there are exigent circumstances, such as evidence which can be quickly destroyed, hostages in peril, or known dangerous criminals unlikely to surrender peacefully, but these factors must be considered on a case by case basis, and blanket categories, such as all searches for drugs, cannot be applied. (Richards v. Wisconsin) The Supreme Court has ruled (US v. Banks)that the time police must wait before forcing entry may be as little as 20 seconds, IF certain factors such as time of day, the size and layout of the residence and the ease with which the evidence sought can be destroyed are weighed and there is good cause to believe allowing more time will result in loss of evidence or hazard.

From the sworn testimony of the Chesapeake Police officers at Frederick’s trial, it is clear that the planning for their search met NONE of these tests and that it is the policy of the Chesapeake Police Special Investigations Unit to execute ALL searches for drugs as expedited forced entries, in clear violation of our Fourth Amendment rights. Why? Because they can. In Hudson v. Michigan the Supreme Court ruled that evidence gathered in violation of the required knock and announce procedures can still be used at trial if the search was otherwise lawful and at most the subject of the search can file a civil rights violation suit as a remedy.

So, if the test of reasonableness cannot be met, was the method of the search at least necessary? Bagwell asserts such overwhelming uses of force and surprise are required for the safety of the police, but is that supported by any statistical evidence? A thorough search of databases available from the Cato Institute and the Officer Down Memorial Page lists a number of Virginia police officers and citizens who have been killed or injured in forced entry searches (and nationally, such tragedies number in the hundreds) but in fifty years, not a single Virginia Police officer has been killed executing a search warrant by peaceable means. Criminals may well delay entry to destroy evidence, but there is absolutely no evidence that they will engage in a shootout when they know the police are present in force to conduct a search and they are given time to assess their situation. The necessity for such forced entry searches for officer safety proves to be little more than a law enforcement urban legend.

The police have no inherent powers simply because they are the police. They have only the powers we, the people, grant them. It is our duty as citizens, acting through our elected officials, to monitor the actions the police take in our names, and ensure they act in accordance with our values and Constitution. It is time the citizens of Chesapeake demand our police return to compliance with the principles that keep us free.

http://tinyurl.com/RnorN

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6 Responses to Neither Reasonable nor Necessary

  1. ktc2 says:

    It’s a good letter. Sadly, the police, not only in Chesapeake, are completely out of control. They seem to think they are “Judge Dredd”.

    The only thing that MIGHT change this would be ending the incredibly counter productive “drug war” but this will not happen.

    So sit back and “enjoy” the ride folks. We are living in a police state now, so what comes next?

    • Don Tabor says:

      Actually, a reversal of Hudson v Michigan, re-applying the exclusionary rule to searches which violate ‘knock and announce’ requirements, would bring these rushed raids to a screeching halt.

      That is not beyond the realm of possibility if someone brings a test case. It was a 5-4 decision and Kennedy, in his concurrence, said that if a pattern of abuse emerged, he would re-think his position. I would say that is manifestly the case.

  2. ktc2 says:

    Don,

    I think you underestimate the corruption of the occupying army that our founders didn’t see coming (i.e. the police). These people perjure themselves so often they have their own name for it, testilying.

    Secondly, I do not think we will see any rulings that favor defendant’s rights in the current, or next SCOTUS. Remember these are all just “isolated incidents” in the face of the “new professionalism”. Those people live in a dream world, an ivy tower if you will. They have no idea what is happening in the real world.

  3. supercat says:

    It should further be noted that the Fifth Amendment forbids the government from depriving people of life, liberty, or property without due process of law. While accidental or incidental damage to property is sometimes unavoidable, the government has a duty to minimize such damage to the extent that it can do so while performing its necessary duties.

    If the police’s objective was to ensure that they could cause over a hundred dollars of damage to Mr. Frederick’s door before he could do anything about it, their mode of attack may have been a reasonable way to achieve such an objective. On the other hand, per the Fifth Amendment, such an objective would be illegitimate. I don’t think there’s any plausible argument that the police’s mode of attack was a reasonable way to achieve any legitimate objective.

  4. ktc2 says:

    Biden to Law Enforcement Groups, “Sotomayor has your back”.

    http://www.foxnews.com/politics/2009/06/10/biden-tells-law-enforcement-groups-sotomayor/

    So much for even the pretense of objectivity.

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