The Atlanta Journal-Constitution has an article today entitled Probe sought in police shooting of woman, by Bill Montgomery. (The previous post with an update is here.) The AJC article mentions that it was a no-knock warrant, but the AJC has been unable to find out why the police claimed the need for such a warrant because the courts will not release the affidavit, despite its status as a public record. By hiding it, the Atlanta court system is only making things worse for the police department. They need to let it all out now, and help clear the air.

Police contend they obtained a so-called no-knock search warrant for the Neal Street house after buying drugs Tuesday afternoon from a man inside the home.

The no-knock warrant is frequently used in suspected drug cases because police believe their surprise entry into a home prevents drug dealers from flushing away or destroying the evidence. In this case, the warrant did not name a person, referring only to a "John Doe, aka Sam," the standard reference when a person's name is not known, police said.

The Atlanta Journal-Constitution has been unable to independently confirm the police account about the need for the no-knock warrant because it has not been able to read the sworn statement police provided to a judge to obtain the warrant.

State Court Administrator Stefani Searcy has refused to release the information, although state law considers all such documents public record. Searcy has cited "office policy" as her reason for withholding the information.

A cynic might say that the courts are covering their own behinds for granting a no-knock warrant without a proper showing of justification. In my experience, the police are rarely turned down for a no-knock warrant because judges seldom subject the affidavit to critical analysis, if they even read it at all. Why are state court judges seemingly so willing to robotically and unthinkingly grant no-knock warrants on any police assertion that they need one? Judges are supposed to be "neutral and detached" and that includes the request for a no-knock warrant.

The only two justifications for a no-knock warrant are danger to the officers and risk of destruction of the thing sought in the warrant. So, what did the officers show to the issuing judge about their need as facts, under oath? What was the true factual basis for their purported need for a no-knock, or was it just their assumption because they've been getting away with them?

Apparently they did not know whether the drug dealer they wanted lived in Mrs. Johnston's house or simply was not going to be there. There has been nothing in the paper yet that shows me that the guy they wanted even lived there. All they know is "John Doe aka Sam." Sounds to me like the pre-search briefing was non-existent or just pro forma. In police reality shows they show the briefings, but I have often wondered whether what we see on TV is just for show, and the real thing is lacking. Here, it obviously was because the Atlanta Police apparently had no clue they would encounter an elderly woman inside but no drug dealer.

In my oral argument in Wilson v. Arkansas in 1995, I suggested (maybe even stated) that a small quantity of drugs would not support dispensing with announcement because of the gravity of the crime weighed against the interest of the individual. Justice Scalia did not think much of that argument, and he shot it down as soon as I said it.

With the June 2006 demise of the federal exclusionary rule in knock-and-announce cases, this case, no matter how it turns out in the civil case that will inevitably follow, is the prototypical example of why the knock-and-announce rule is so constitutionally important that the exclusionary rule cannot be cast off as an impediment to effective law enforcement. "Effective law enforcement" is not an excuse to shoot first and ask questions later.

If Hudson v. Michigan cannot be overruled federally, it can certainly be rejected in state courts under state law. The day after Hudson was decided, I amended a state motion to suppress a no-knock warrant on the ground that Hudson would likely not be followed in my state.

Regretfully, it takes tragedies like this to point out that the Supreme Court, pretending not to be an activist court but taking an activist stance in giving carte blanche to the police, should stick with precedent instead of encouraging official lawlessness. As Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

From all appearances and my experience as a criminal litigator, on both sides of the courtroom, the Atlanta Police Department's SWAT team and narcs were woefully incapable of or unprepared for handling this no-knock entry. They treated it as an everyday occurrence instead of inviting gunfire from the occupants inside. The year I was born, Justice Jackson, concurring in McDonald v. United States, 335 U.S. 451, 460-61 (1948), foresaw this:

I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight. Many homeowners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers. But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.

If they were right, prove me wrong, and I will stand corrected. At the minimum, the Atlanta court system should not act like a party to this by sitting on the affidavit for the search warrant.