There were some adolescent smirks among the crowd as the U.S. Supreme Court solemnly deliberated the case of Max Rettele and Judy Sadler this spring. How odd, then, that -- as with the dog that did not bark in the famous Sherlock Holmes story -- no one seems to have noticed the most important thing about this 6-year-old case was the question that no judge ever asked.
At 7 a.m. on Dec. 19, 2001 (the earliest moment police could act, because they had no "nighttime endorsement,") the Lancaster, Calif., couple were in bed in their home when Los Angeles County sheriff's deputies in possession of a search warrant banged on the front door.
Chase Hall, Ms. Sadler's 17-year-old son, opened the door to find five deputies leveling guns in his face. Rather than present their warrant and give anyone a chance to read it, the cops ordered the youth to the floor and fanned out through the house.
Three deputies burst into the bedroom, ordering Mr. Rettele and Ms. Sadler -- who had bought the home three months before -- to get out of bed and show their hands. Police denied them permission even to grab a sheet or blanket to cover their nakedness.
A few minutes later, the deputies apologized to the couple and decided they would be allowed to clothe themselves. Although the address on the warrant matched the couple's residence, it soon became evident the targets of the search, three suspected identity thieves, had moved out before Mr. Rettele and Ms. Sadler moved in.
The suspects being sought were African-Americans; Rettele and Sadler are unmistakably white.
Not placated by the deputies' apologies, the couple sued the officers and Los Angeles County, complaining they had been victims of an "unreasonable search" in violation of the Fourth Amendment. A federal district judge rejected the lawsuit, but the 9th U.S. Circuit Court of Appeals said it could go to a trial.
The appeals court reasoned that even a brief glimpse of the bed's occupants should have alerted the deputies they "were not the subjects of the search warrant and did not pose a threat to the deputies' safety." Therefore, if allowed to hear the case, a jury might conclude the search was "unnecessarily painful, degrading or prolonged."
To which the Supreme Court responded: "We need not pause long in rejecting this unsound proposition." Why? Because when the deputies ordered Rettele and Sadler out of bed, "They had no way of knowing whether the African-American suspects were elsewhere in the house," the justices figured. As for the refusal to let the couple cover themselves, the court noted "blankets and bedding can conceal a weapon."
So can pants and shirts. Can cops order every resident of a house being searched to immediately strip naked, "just in case"? Where in the Constitution does it say that police can disarm every resident of any building to be searched, anyway? In fact, the Second and 14th amendments say just the opposite. Till arrested, we can bear arms. The documents grant no exceptions for "hypothetical officer safety."
Only Justice David H. Souter would have joined the 9th Circuit in letting a jury decide.
Yet, during this whole six-year legal rigmarole, no one appears to have asked the most important question:
Why wasn't the owner of that house -- Judy Sadler -- allowed to dress and come to the door to read that warrant?
Back in the quaint and ancient days before 1970, Americans used to speak of what police did with such pieces of paper as "serving a warrant." What that phrase meant was that police were expected to ring the bell or knock at the door, identify themselves and present their warrant, giving the occupants a few moments to scan the document and confirm (however reluctantly) that -- yes -- police had the correct address. At that point, law-abiding citizens were expected to echo the words of a well-known Grateful Dead song: "If you got a warrant, I guess you're gonna come in."
Accommodations have long been made for police to ask judges -- on rare occasions -- for special "no-knock" warrants. Initially, this required some evidence that the building housed a gang of known killers who could be expected to use a few moments' warning to rack the bolts on their Tommy guns.
Later, these exceptional "no-knock" warrants might be sought if there was reason to believe a drug dealer might use those few moments to flush his stash down the toilet.
(In fact, drug users can flush their stashes; actual drug dealers would need a toilet bigger than a hot tub. But police call every drug user a "dealer" to cover up how often they accept bribes to leave the real dealers in peace.)
As the Florida Supreme Court ruled in the 1994 case Florida v. Bamber, however, "No-knock warrants are disfavored under the law and limited largely to those states that have enacted statutory provisions authorizing their issuance. In fact, 'The prevailing ... view is that a magistrate may not issue a so-called no-knock search warrant in the absence of such a statutory provision.' (Wayne R. LaFave, 'Search and Seizure,' 1987) ...
"A strong presumption existed against the validity of no-knock searches at common law. (Benefield v. State of Florida, 1964)," the Florida court continued. "In fact, it is generally recognized that police have been required to knock and announce their authority and purpose before breaking into a home since time immemorial. ...
"Judge Prettyman for the Court of Appeals in Accarino v. United States discussed the history and reasons for it. ... The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call.
"There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office."
(How quaint -- as though plainclothes cops storming into homes at or before the crack of dawn still display recognizable "insignia of office.")
"This is why the law protects its entrance so rigidly. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and the sanctity of the home in a free country. ..."
The constitutional requirement of announcement serves a number of most worthwhile purposes, the Florida court noted: "decreasing the potential for violence"; "protection of privacy"; and "preventing the physical destruction of property," such as caved-in doors.
"As to the first of these, it has been cogently noted that an 'unannounced breaking and entering into a home could quite easily lead an individual to believe that his safety was in peril and cause him to take defensive measures which he otherwise would not have taken had he known that a warrant had been issued to search his home,' " while, on the second count, "Notice minimizes the chance of entry of the wrong premises by mistake and the consequent subjecting of innocent persons to 'the shock, fright or embarrassment attendant upon an unannounced police intrusion.' "
Which takes us right back to Dec. 19, 2001, in Lancaster, Calif., doesn't it?
Sheriff's deputies burst into the home of Mr. Rettele and Ms. Sadler looking for three men wanted in connection with a fake ID and identity theft ring. Are folks in that line of work generally presumed to be unusually trigger-happy? I don't think so. They sure can't flush all the massive equipment needed to make those fake IDs down the toilet.
That's why this was not a "no-knock" warrant.
So why weren't those L.A. sheriff's deputies fired or imprisoned for barging into that couple's bedroom with guns leveled -- an unnecessary act that would constitute the crime of "assault" if you or I tried it -- when the warrant in their possession authorized them only to knock at the door and enter and search in a civil manner after presenting their warrant for inspection during normal daylight hours?
By now, of course, any police officers reading this are rolling in the aisles. They know -- even if the average American hasn't yet been formally notified -- that there's really no more "no-knock" distinction, because we now live in a full-fledged police state where all warrants are presumed to convey "shout-once-and-storm-in" authority.
I warned you it would come to this, as the Supreme Court in successive rulings gradually shaved down the amount of time cops are supposed to wait after knocking on a door, all based on the absurd and freedom-destroying "might flush the drugs" argument (as though the Constitution authorizes the central government to concern itself with what plant extracts we possess and consume in our own homes, in the first place).
Why is this bad?
Does no one recall the death of 88-year-old Kathryn Johnston in Atlanta last November?
On Nov. 21, Atlanta police planted marijuana on Fabian Sheats, a "suspected street dealer." They told Sheats they would let him go if he "gave them something." Sheats obligingly lied that he had spotted a kilogram of cocaine nearby, giving them the address of the elderly spinster Miss Johnston, who neither used nor dealt drugs, but who did live in fear of break-ins in her crime-infested neighborhood.
Police then lied to a judge, claiming they had actually purchased drugs at the Johnston house, acquired one of those once-rare "no-knock" warrants, and violently battered down the reinforced metal door of a private home where there were no drugs.
Next week: What happened to Miss Johnston -- and to the entire Atlanta Police Department Narcotics squad.
Vin Suprynowicz is assistant editorial page editor of the Review-Journal and author of the novel "The Black Arrow." See www.LibertyBookShop.us.