Marijuana

State Courts Say Early-Morning Pot Raids Were Gratuitous and Illegal

Judges in Florida and Michigan exclude evidence collected by overeager drug warriors.

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JZS

Sheriff's deputies in Collier County, Florida, were so eager to arrest Juan Falcon for growing marijuana in his backyard shed that they arrived at his home before 7 a.m. and broke open the door with a battering ram less than 20 seconds after announcing themselves. Drug cops in Kent County, Michigan, were so eager to arrest Michael Frederick and Todd Van Doorne for possession of marijuana-infused butter that they awakened the two men early in the morning and bullied them into allowing searches of their homes. In both cases, state courts recently ruled, the police officers' unjustified haste made their subsequent searches illegal.

These cases show how blithely drug warriors resort to terrifying and potentially deadly tactics in response to "crimes" that violate no one's rights, even when safer alternatives are readily available. But the rulings also suggest that courts are increasingly willing to rein in such recklessness.

In Falcon's case, Florida's Second District Court of Appeal concluded last month that the deputies had violated a state law governing "knock and announce" searches. The law allows an officer with a search warrant to break into a house "if after due notice of the officer's authority and purpose he or she is refused admittance." Since Falcon and his family were asleep at the time of the search, Judge Susan Rothstein-Youakim wrote for a unanimous three-judge panel, the 15 to 20 seconds that the SWAT team waited was not enough time to conclude that they had been "refused admittance." In fact, Falcon and his teenaged daughter were on their way to the door when the deputies forced it open, tossing two flashbang grenades as they did so.

Rothstein-Youakim noted that police violate the knock-and-announce law when they "knock, announce their authority and purpose, and then enter with such haste that the occupant does not have a reasonable opportunity to respond." Without such an opportunity, what is nominally a knock-and-announce search is in practice indistinguishable from a no-knock search, which requires a special warrant based on circumstances that make the usual approach dangerous.

Rothstein-Youakim noted that police had no reason to believe that Falcon, whose criminal record was limited to a DUI arrest, was armed or would offer resistance. "The deputies also had no reason to believe that Falcon knew that they were coming, that anyone inside the residence was at risk of harm, or that Falcon or his family might try to escape or destroy evidence," she wrote. But they did know that Falcon had two teenaged children and that the family was apt to be asleep at that hour, magnifying the risk that Falcon would mistake the deputies for burglars or do something they would interpret as threatening.

Such early-morning raids, which are designed to maximize fear and confusion, can easily end in serious injury or death. Whether or not you support prohibition, the 26 marijuana plants that police found in Falcon's shed surely were not worth risking anyone's life. "Precisely because there is so little margin for error either way," Rothstein-Youakim said, "we urge law enforcement agencies to use SWAT tactics to execute search warrants sparingly and to take special care that their use does not simply become par for the course." It may be a bit late for that warning, since SWAT teams are routinely used to serve drug warrants, but it is nice to see that some judges have qualms about such paramilitary raids.

In the Michigan case, police arrived at Frederick's door about 4 a.m. and at Van Doorne's around 5:30 a.m. They easily could have waited until the men were awake. Presumably the cops thought Frederick and Van Doorne, both of whom were employed by the Kent County Sheriff Department as corrections officers, would be more intimidated and malleable immediately after being roused by a knock on the door in the middle of the night. They were also more alarmed. According to the Michigan Supreme Court, "Van Doorne considered arming himself, as did Frederick's wife." You can imagine what might have happened if either of them had picked up a gun in self-defense.

The officers, part of the Kent Area Narcotics Enforcement Team, did not have a warrant. They defended their visits as "knock and talk" interactions that do not require judicial approval. But as the Michigan Supreme Court noted last June, that exception to the warrant requirement is based on the premise that police are doing nothing more than any member of the public is implicitly invited to do. "The scope of the implied license to approach a house and knock is time-sensitive," the court said, and does not include hours when a home's residents are likely to be asleep. Hence the officers who woke up Frederick and Van Doorne were trespassing on private property in the hope of gathering incriminating evidence, much like the cops who brought a drug-sniffing dog to the doorstep of a marijuana grower's house in Florida v. Jardines, the 2013 case in which the U.S. Supreme Court ruled that such an intrusion violates the Fourth Amendment.

Notably, both the majority and the dissenting justices in Jardines observed in passing that waking people up by knocking on their doors in the middle of the night is not something members of the general public are invited or expected to do. Having concluded that "the police were trespassing when they approached the defendants' homes," the Michigan Supreme Court instructed the Kent County Circuit Court to consider whether the evidence discovered by the subsequent, ostensibly consensual searches was nevertheless admissible. Last week Kent County Circuit Court Judge Dennis Leiber ruled that the evidence is so closely tied to the Fourth Amendment violations that it must be excluded, meaning that the cases against Frederick and Van Doorne cannot proceed.

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