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Drug War v. Civil Liberties II

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Radley Balko has a terrific article about no-knock warrants, which does a particularly good job of outlining the way that the War On (Some Classes of People Who Use Some) Drugs has been used to eviscerate civil liberties. Particularly important is the that the potential for destroying evidence provides an “exigent circumstance” for unannounced searches, which effectively removes any barrier to such searches at all:

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.

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.

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With those two clauses, Souter effectively dismissed the common-law principle that announcement protects the innocent from an unjustified home invasion and instead instructed police to treat everyone named in a drug search warrant as if they were already guilty. What good is an announcement if police aren’t required to give you sufficient time to answer the door? Under Souter’s reasoning, it’s difficult to understand what purpose the announcement requirement put forth in Wilson serves at all, other than offering a quaint, ceremonial homage to a time when the Fourth Amendment was more than a mere formality.

There’s also a lot of good stuff in the article about the militarization of police forces. Balko also preemptively explains why Glenn Reynolds–in his never-ending quest to establish himself as the blogosphere’s most statist “libertarian”–is wrong to argue that the exclusionary rule should not be used as a remedy in such cases. While it sounds nice on paper, and while I’m all for creating full liability and removing legal immunities in cases of no-knock searches, as Balko points out “monetary damages against police in such cases are unheard of.” By allowing the police to use illegally seized evidence, Reynolds’ remedy would leave large incentives to continue the illegal behavior in place, and given the vanishingly small chance of winning significant damages it’s highly unlikely that innocent victims (who are overwhelmingly likely to be poor, unaware of favorable changes in civil law codes, etc.) will sue the police. Making no-knock (or other kinds of unconstitutional) searches illegal but permitting the state to use any evidence gained from them is functionally indistinguishable from just making them legal.

And for a tragic account of the awful potential consequences of “no-knock” searches, remember Balko’s terrific work on the horrifying case of Cory Maye.

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