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

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

JZSJZSSheriff'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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  • Diane Reynolds (Paul.)||

    broke open the door with a battering ram less than 20 seconds after announcing themselves.

    Well at least they're announcing themselves.

  • ApoxOnBothTheirHouses||

    How loudly? If they show up when the residents of a home are likely to be asleep and announce themselves in a whisper while knocking softly, is that adequate?

  • Hank Phillips||

    That's perfectly in keeping with Nixon-era "no-knock" policies for busting hippies.

  • Last of the Shitlords||

    But what about Hoover era no-knock policies?

  • Diane Reynolds (Paul.)||

    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.

    Flashbangs are a form of speech. First amendment, bitches.

  • Fist of Etiquette||

    There is dashcam video of one of the cops outside his door.

  • Tionico||

    so are small pieces of lead about four tenths of an inch in diameter.

  • Diane Reynolds (Paul.)||

    "knock and talk"

    That was my nickname in the women's dorms.

  • Citizen X - #6||

    Paul probably could have earned a reputation as a good listener, but his dick was always out.

  • Diane Reynolds (Paul.)||

    Like Harvey Weinstein, I grew up in a time where that was acceptable. I'll let you flyover rubes try to figure out what time that was.

  • Longtobefree||

    According to the article; 7AM, 4AM, and 5:30AM

  • Fist of Etiquette||

    Oh, boy. I'd hate to be in those cops' shoes right now, with the punishment coming their way.

  • Hugh Akston||

    Not to mention the department and municipal budgets after they have to pay restitution to the victims.

  • Diane Reynolds (Paul.)||

    True, that one cop got a pretty good splinter in his thumb when he rammed the door open.

  • Longtobefree||

    Things like this are why they outlawed civilian use of land mines and claymores.

  • Earth Skeptic||

    So the cops could have more?

  • My Dog Bites Better Than Yours||

    You can imagine what might have happened if either of them had picked up a gun in self-defense.

    Unfortunately, Corey Maye comes to mind

  • Tionico||

    as does José Guereña, formerly of New Mexico. Wrong address for an oh two hundred no knock SWAT raid. His widow and orphaned children have never yet received any compensation for their loss.

  • Tony||

    They lost their case and they didn't even get to murder any pets? Punishment enough, I'd say.

  • Last of the Shitlords||

    You constantly advocate for the government to have unlimited power over everyone's lives, then turn around and bitch about the cops.............

    I know I should be telling you to go fuck yourself (as usual), but I just want you to dwell on that thought for awhile. Probably won't do any good though.

  • TrickyVic (old school)||

    ""They lost their case and they didn't even get to murder any pets? Punishment enough, I'd say.""

    Not enough unless it comes with a paid vacation.

  • Rockabilly||

    Only a commie would think government agents can arrest you for growing something on your own property.

  • Jury Nullification||

    "Only a commie would think government agents can arrest you for growing something on your own property."

    You obviously have not witnessed the ruined lives that resulted from consuming fresh milk.

  • Tionico||

    name one.

  • Jerryskids||

    "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."

    If the urging doesn't work, I guess she could escalate to pleading - it's not like judges have any way of forcing cops to quit executing bullshit warrants.

  • croaker||

    Refusing to allow the prosecution, as was done here, is about all they can do.

  • John C. Randolph||

    They could also refuse to issue warrants when a department has shown a nasty habit of abusing them.

    -jcr

  • TrickyVic (old school)||

    ""If the urging doesn't work, I guess she could escalate to pleading ""

    Maybe thoughts and prayers will work.

  • Hank Phillips||

    An even more pleasant surprise was discovering that the Transport Sozialist Arbeiterpartei goons at LAX caught that little kid actor in Stranger Things with (according to their infallible testing kits) at least 0.000000 milligrams of (GHASP!) South American Ritalin and didn't even bother to kill him or nationalize his mansion! Grace Slick was right... "It's a new dawn."

  • Gene||

    For butter? That's a new one. I just made a nice big batch of cannabis coconut butter, I'll never go back to crappy dairy butter or vegetable oil again.

  • Earth Skeptic||

    Either way, gotta make the bust at 4am before that butter gets used up on pancakes.

  • IceTrey||

    Collier county. I wonder if he lives near Ray Finkle.

  • John C. Randolph||

    tossing two flashbang grenades as they did so.

    If we had a functioning justice system, that shit would be prosecuted as arson.

    -jcr

  • Tionico||

    About time a few courts begin to uphold our Constitutioinal rights and stomp on LE and prosecutores who abuse them. This is good news.

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