Collateral Damage:The War on Drugs and the Unreasonable Seizure of The Fourth Amendment.

By: Michel Horne

For many Americans, the constitution and the bill of rights are symbolic of the commitment to civil liberty that the United States government is sworn to uphold. Among the self evident truths and inalienable rights found within that sacred document the fourth amendment has often been championed as the very cornerstone of American democratic thought. For over two centuries, the fourth amendment has guaranteed American citizens the right to privacy against overreaching actions of the state into their personal lives, chiefly it serves to protect individuals and their private property against unreasonable searches and seizures. In the more philosophical sense, the fourth amendment has been hailed as the very fabric which holds the founding ideals of our nation's political ideology together and the moral compass by which our government determines it's direction for a large number of law enforcement policies. Yet for nearly five decades, nonsensical Supreme Court rulings coupled with unprecedented legislative and executive actions have been pulling loose the threads of that fabric, thereby weakening it's protection and warping the direction of our moral compass in the process.But make no mistake, the erosion of the Fourth Amendment was not the result of clouded judgment or unintentional legislative errors..The Fourth Amendment was deliberately martyred in the name of the war on drugs. More specifically, the Fourth Amendment was sacrificed so that law enforcement could have more expedient means of arresting, prosecuting and convicting individuals who violate the drug laws of the United States. However, that expediency would come at a great cost to society. Much like the physical collateral damage of the wars waged by the United States in Iraq and Afghanistan, the erosion of privacy rights in the United States was deemed as a necessary evil meant to help combat the flow of illegal drugs on our streets. While the effectiveness of drug prohibition as a social policy is a topic for heated debate, the disastrous effects that the erosion of the Fourth Amendment has had on many innocent civilians is abundantly clear. From good faith exceptions for violations of privacy, to weakened standards of proof for probable cause, to no-knock warrants and the exigent circumstances that justify them, to lenient civil asset forfeiture laws and their inevitable abuse-- we have essentially set ourselves up for a future where the fourth amendment is nothing more than a historical artifact with little relevance for society at present. With that being said, while some emphasis will be placed on legislative measures enacted by congress, this paper will focus mainly on key Supreme Court decisions which negatively impacted the protections provided by the fourth amendment. The latter portion of this article will examine how these decisions have affected our society presently by analyzing recent drug war incidences and law enforcement policies. The conclusion of my research will attempt to provide a forward looking analysis which will attempt to demonstrate where our society is headed in regards to the drug war and privacy rights. Yet before we can delve into the situation at hand it is crucial for us to first examine the legislation which has served as the basis for the entire drug war and the impact that it has had on American political thought for more than four decades. That legislation is called Comprehensive Drug Abuse Prevention and Control Act of 1970.Although the drug war has it's origins in early legislative efforts to control drug use in the early 1900's, the war on drugs as we know it today began in the 1970's with the passage of Comprehensive Drug Abuse Prevention and Control Act of 1970. The most important, and perhaps the most infamous, portion of this law is formally named Title II, although it is more commonly referred to as The Controlled Substance Act (CSA.) The CSA created a list of drugs and classified them by their medicinal value versus their potential for abuse. Each drug was then placed within one of five levels or schedules, Schedule I being those which are explicitly banned as they are considered to have no medicinal value and a high potential for abuse, while Schedule V consists of those which are considered to have high medicinal value and an extremely low potential for abuse.The legal implications of this legislation should be apparent even for individuals with rudimentary grasp of the bills legalese: The CSA effectively launched the drug war by tasking the government with the duty of regulating the possession and availability of certain drugs while banning the possession and availability of others. Yet the importance of this legislation lies not just within the new public policy enacted by it's passage... But rather the importance of this legislation is marked by the resulting philosophical shift as it pertains to the right of the government to intervene with and police the private lives of American citizens.In short, prior to the launch of the modern drug war, the prevailing view of privacy rights and personal liberty in American society was predominantly drawn from the foundations of classical liberalism: Government has no legitimate right to use violence or force as a means to restrict the freedoms of it's people so long as those freedoms do no cause harm to or impede on the freedom of others. Furthermore, the government especially had no legitimate right to police those actions of it's people which ultimately amount to being nothing more than poor personal health decisions. But this philosophy was forsaken with the implementation of the Controlled Substances act. With the passage of this legislation the government of the United States cast away these fundamental Liberal principles in exchange for a moralist approach to governance that is reminiscent of 20th century prohibitionist movement. Apparently they learned nothing from the great failure of alcohol prohibition, because despite the blatant parallels between the two policies the government was ultimately tasked yet again with the legal right and the moral duty to save people from themselves... To govern their personal health habits. Even if violence and force were the means by which they had to achieve that end. All in the name of the supposed greater good of society. There is nothing more stark than this in comparison to the Lockean view of personal liberty which our nation was founded upon. The philosophical shift marked by the passage of the CSA is crucial to examine in order for one to develop an understanding of how we allowed the protections of the fourth amendment to become so eroded and warped. To be more specific, and in an attempt to be brief, the Controlled Substances Act would ultimately undermine a crucial cornerstone of American political philosophy-- the right of individuals to govern their own private lives when their actions posed no harm to others. Given the importance of that philosophy the passage of the CSA should have been met with immediate resistance from the courts... The so called defenders of the constitution. But that wasn't the case. Aside from a minor challenge to the extent of the federal government's power authorized by the CSA [see Gonsales v Raich (2005)] the constitutionality of this law has never been challenged. As a result, our fundamental view of personal liberty, and by extension our view of an individuals right to privacy, was majorly altered without a fight. Considering our willingness to greatly alter a major cornerstone of American political thought, no one should have been surprised that the courts would spend the following decades carving out exceptions to the fourth amendment in order to facilitate the drug war! For if our fundamental view of personal liberty could be effortlessly vanquished in the name of moralism, how could we reasonably expect our protections under the fourth amendment to not be martyred for the same cause? But with all this discussion of political philosophy, the most important question of this whole situation still remains: What exactly did we sacrifice and how did it happen? The answer to this is multifaceted. But a good starting point would be how the drug war has impacted our right to challenge the use of evidence gathered from illegal searches and the warrant process as a whole.Every American citizen should be able to tell you that the fourth amendment protects citizens against unreasonable searches and seizures of their persons and property. But not everyone can tell you how those protections are enforced because the constitution doesn't state the means by which these protections are given their power. The answer can be found through deductive reasoning, but one must ask oneself the following: What happens when the government disregards a persons constitutional rights and gathers evidence against them through an illegal search? If evidence of criminal activity is seized, but the means of discovery were unlawful or illegal, should the that evidence to be introduced or should be deemed inadmissible in court? Can the fourth amendment have any real meaning or power if said evidence is allowed to be introduced at trial or would this nullify the entire purpose of the amendment itself? This was the basis for the Supreme Court case Weeks v. United States (1914.) In Weeks federal agents entered the home of the petitioner, Fremont Weeks, and seized papers from his home which were used to bring him up on criminal charges of transporting lottery tickets through the mail. However, the search of Weeks' home was done without a search warrant. After deliberating the facts, the court reached a unanimous decision that Weeks' fourth amendment rights had indeed been violated. For the first time, and one of the few in Supreme Court history, the White Court established an unwavering defense of the fourth amendment against overreaching state actions. In their own words: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. (Weeks v United States)Plain and simple. If the government is allowed to procure evidence through illegal means and use said evidence in trial then the entire point of the fourth amendment is null and void. We would essentially be banning the practice of illegal searches but permitting their results. It does not take a legal expert to see how this would be a self defeating practice. Therefore, evidence obtained through unlawful searches and seizures was to be inadmissible in court from that point on. This was the first application of what would become known as the exclusionary rule, which was hailed by the Supreme Court for many years as being an essential safeguard for the Fourth Amendment. There is no doubt that creation of the exclusionary rule was important for a number of reasons particularly those regarding how it affected criminal legal proceedings in the United States. However, I find the White Court's interpretation of the Fourth Amendment to be particularly important, especially considering how this interpretation would later be completely disregarded despite it's indisputable common sense approach to privacy rights.The majority opinion was delivered by Justice Day who was joined by a unanimous court, he begins by saying: The effect of the Fourth Amendment is to put the courts of the United States and Federal Officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people... against all unreasonable searches and seizures... This protection reaches all alike... and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal System with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures... should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution. (Weeks v United States)

The language used by the Court in this segment of the opinion is very interesting... The reference the limitations of the fourth amendment as being applicable to both federal officials and the courts... Stating that the duty of giving the fourth amendment force and effect is obligatory upon all entrusted under our federal system (meaning officials and courts alike.) The language used here is important because this unique interpretation of the White Court set a new legal precedent by addressing a crucial, but surprisingly, unanswered question about the Fourth Amendment: Who does the amendment actually apply to? This question may seem foolish at face value, but it certainly is a very valid question that was left largely unanswered due to the ambiguous language used by the framers. After all, the literal text of the Fourth Amendment makes no mention of whom the amendment actually applies other than stating that it is the right of the people to be protected by unreasonable searches and seizures by the government. But who qualifies as the government? Is it just the police or should it apply to the courts as well? Did they mean that it applies exclusively to the federal government or should that also be inclusive of the states? Perhaps it is it all of the aforementioned? As shown in the aforementioned segment of the majority opinion in Weeks, The White Court seemed to believe that the Fourth Amendment applied to both the Courts and federal officials alike. Anyone who is unconvinced of this might find a great deal of insight in the continued explanation of the Court's opinion.In a later portion of the court explains the rationale behind applying the fourth amendment to officials and the courts by addressing their synergistic relationship. They then boldly state that judicial sanction of the admittance of illegally seized evidence is an open defiance to the constitution. Justice day, on behalf of the unanimous court, wrote:

The efforts of the courts and officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land...To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the constitution, intended for the protection of the people against such unauthorized action. (Weeks v United States)

Again, language is key in this opinion. The court undoubtedly recognizes the synergistic relationship of the courts and officials by their statement that both parties seek to ...bring the guilty to punishment... (Weeks v United States) and we should not aide their efforts, praiseworthy as they may be, by sacrificing the constitutional rights which our nation holds sacred. Simply put; The police and the courts work together, albeit in different fields, to achieve the same goal. Without one doing their job properly the other couldn't function as intended. Considering this, it only makes sense to apply the same restrictions of one to the other. For if police attaining evidence through a warrantless search is a violation of an individuals rights, then naturally it only makes sense to consider the admission of that evidence by the court to be a further violation of that individuals rights. The only logical remedy is to apply the fourth amendment in such a way as to make the admission of illegally obtained evidence equally as unconstitutional as the initial unlawful search. This, in so many words, is the logical basis of exclusionary rule.But despite this astounding new legal precedent there was only one problem with the exclusionary rule as decided in Weeks: It only applied to federal agents and not to local or state police. This is surprising considering the courts willingness to tread into uncharted territory (philosophically speaking) and establish a new interpretation of the limitations on government power as established by the fourth amendment. One would think that such a progressive court would have had the foresight to apply the rule to both Federal and state agents simultaneously before a similar issue arose from an incident at the local level that would subsequently make it's way back to the Supreme Court. However, they did not do this and an identical incident involving the Ohio state police would arise almost 50 years later prompting the court to once again deliberate over the proper application of the exclusionary rule. This was the basis for Mapp v. Ohio (1961.)In Mapp, state police in Cleveland, Ohio were tipped off that the suspect of a bombing incident in addition to illegal betting equipment might be found at the home of Dollree Mapp. When police arrived at the petitioners residence she refused to let them in without a warrant. Two officers left to procure a warrant and one remained behind. Three hours later the other two officers returned with several other officers as reinforcements. They brandished a piece of paper which they claimed was a search warrant, but when Mrs. Mapp asked to review the warrant the police refused to give it to her for inspection. She struggled with the officers to read the warrant but ultimately failed after they handcuffed her under the claim that she was being belligerent. Upon searching the house they found no bombing suspect and no illegal betting equipment, however they did find pornographic material beside her bed. At the time pornography was illegal in Ohio, so in compliance with state law she was arrested for possession of pornographic material. When the case went to trial the pornography was introduced as evidence, yet the search warrant brandished by the officers during the search was never introduced. Many legal scholars believe that the search warrant never actually existed and that the piece of paper was a bluff on the part of the police officers but the court never addressed that point during the trial. None the less, Mapp was prosecuted and inevitably convicted of possession of illegal pornographic material.As a result, Mapp immediately petitioned the Supreme Court stating that a lack of a search warrant meant that the entire search and seizure was a violation of her fourth amendment rights and thus the evidence should have been suppressed at trial. When the case made its way to the Supreme Court, the Warren Court had a serious question at hand; Should the 4th amendment, and the exclusionary rule laid out in Weeks finally be applied to the states via the 14th amendment? The petitioner reasoned that the exclusionary rule was an absolute necessity at all levels of law enforcement because if the 4th amendment did not limit the prerogatives of police at the state and local level, then local law enforcement would essentially have a mandate to search anybody, anywhere, at anytime without any restraint imposed by the constitution. Ultimately, in a 6-3 decision, the Court upheld the argument of the petitioner which overturned the conviction and applied the exclusionary rule to local courts in the process. The Court went on to explain the reasoning for it's decision by citing a case from a year earlier, they stated Only last year [Elkins v. United States] the court... recognized that the purpose of the exclusionary rule 'is to deter-- to compel respect for the constitutional guarantee in the only effective available way-- by removing the incentive to disregard it.' (Mapp v Ohio) Finally, after 50 years of development, the exclusionary rule had finally culminated with the decision of The Warren Court in Mapp. Yet despite the great legal strides made between 1913 and 1961, the disappointing outcome of the exclusionary rule was that 23 years after it's culmination in Mapp v Ohio, less than half the time it took for the rule to be established nationally, it would be made largely irrelevant by a Supreme Court ruling in 1984 which created the good faith exception to the rule.The case was titled US v Leon (1984). In Leon the court was attempting to answer the question of whether or not the exclusionary rule should apply to evidence that was gathered illegally as the result of a magistrates error? More specifically, if a warrant was mistakenly issued where there was no basis for probable cause, making the entire search illegal, should the evidence obtained still be allowed in court or held subject to the exclusionary rule? But in order to understand this case better we must go back to the beginning of Leon which dates back to 1981. In the beginning of that year a confidential informant of unproven reliability submitted a tip to Burbank Police Department that two individuals known to him as Patsy and Armando were selling Cocaine out of their domicile located at 620 Price Drive in Burbank, California. Five months after receiving this information, Burbank police began an investigation focusing on the house at Price Drive which eventually branched out to two other residences used by the couple located at 7920 Via Magdelena and 716 South Sunset Canyon. At the conclusion of the investigation a month later, the investigating officers applied for and secured a search warrant for the three residences as well as all vehicles registered to the couple. Large quantities of drugs and cash were seized at the Via Magdelena and South Sunset Canyon houses and only small amounts of both were found at the main house on Price Drive. Patsy, Armando and a couple other suspects were arrested. One of whom was Alberto Leon, the occupant of the South Sunset Canyon house and an associate of Alberto and Patsy.After examining the evidence, Leon's defense filed a motion to suppress the state's evidence under the exclusionary rule on the grounds that the search warrant was invalid. The defense argued that the validity of the search warrant was compromised because the police had not adhered to the two-prong test, also known as the Aguilar-Spinelli test, which requires police to validate the reliability and trustworthiness of an untested informant before filing an affidavit for a search warrant. At the time the Aguilar-Spinelli test was an absolute requirement for validating probable cause for a search warrant if it was to be based upon the tip of either confidential or anonymous informants who were untested. Any informants tip that did not pass the two prong test was not sufficient enough to serve as a basis for probable cause and thus any search warrant affidavit reliant on that informant's tip would also be insufficient. The government responded by requesting that an exception be made to the exclusionary rule where exclusion would not apply to evidence seized on reasonable, good faith reliance on a search warrant that might be otherwise invalid. The district court granted the motion to suppress in part, stating that the defense was correct as the affidavit for the search warrant was insufficient to establish probable cause.. However, not all of the evidence would be suppressed as none of the respondents had grounds to challenge all of the searches. The district court, in response to the government, flatly rejected the request for a good faith exception.Although their request had been denied, the state still had enough evidence to successfully prosecute the suspects. However, they really wanted their good faith exception to stick. Ergo, the state appealed to the 9th circuit court for a reversal. But the good faith exception failed once again when the circuit court upheld the ruling of the district court citing that the information provided by the informant did not pass the Aguilar-Spinelli test and therefore the search warrant as a whole was invalid. Once again the request of the government for a good faith exception was flatly denied. Upon this decision, the government petitioned the Supreme Court and in 1984 the case made it's way to the Burger Court.Under the precedents set by Weeks and Mapp, the court's decision should have been staunchly in favor of the rulings of the district and circuit courts. But the Burger Court ruled 6-3 in favor of establishing the good faith exception. This was a surprising and extremely detrimental ruling the exclusionary rule and the fourth amendment as interpreted in Weeks and Mapp. Both of those cases served to strengthen the amendment by establishing a new judicial interpretation of it's protections. Where the Fourth Amendment failed to expressly state that illegally obtained evidence was a violation of the an individuals right to privacy, the court logically deduced that it only makes sense to prohibit the admission in court of fruits of an unlawful search. The logic stands as such: By prohibiting the action of unlawful searches while concurrently condoning the admission of illegally gathered evidence into court we would effectively be nullifying the entire purpose of the fourth amendment. Without a rule to exclude illegally obtained evidence law enforcement could violate the fourth amendment whenever they want and it would have absolutely no detrimental effect on their case. Without the exclusionary rule law enforcement would have a means by which they could circumvent the fourth amendment, thereby reducing the vital protections of the amendment to nothing more than a form of words. In a sense, without the exclusionary rule the protections afforded by the fourth amendment would not be enforceable and thus the entire purpose of the amendment depends on the prohibition of admitting illegally obtained evidence into court.In the same vein, the initial logic laid out for the exclusionary rule should also hold true for the fruits of invalid search warrants just as it applies to evidence gathered from the fruits of searches conducted without a warrant. Both are unlawful, despite the fact that the basis for their unlawfulness might differ. Therefore, it makes no logical sense to create a distinction between the two by labeling one as wrong and unlawful while the other is wrong but permissible. This premise for this mode of thinking is based on a serious error in logic. In so many words, the law should not treat the police and the courts as constitutional strangers of one another because they are not. One cannot function without the other and as such they should be held to the same constitutional restrictions. Logically it only makes sense to do so, otherwise the court is undermining the entire purpose of the exclusionary rule: To prevent the circumvention of the Fourth Amendment by creating a means by which illegally obtained evidence could be admitted into court and an individuals rights would be further violated beyond the initial unlawful search. In summation, failing to apply the exclusionary rule to the fruits of invalid search warrants would undermine the fourth amendment just as much as the admission of evidence obtained without a warrant. The logic underlying the exclusionary rule is both sound and compelling. But for some reason the Burger Court turned it's back on this reasoning. They adopted a flawed interpretation of the Fourth Amendment that the Supreme Court had been abandoning for decades. With the decision in Leon the court essentially turned back the constitutional clock, so to speak.The six justices in favor of the good faith exception were White, Burger, Blackmun, Powell, Rehnquist and O'Connor. The dissenters were Brennan, Marshall and Stevens. Justice White wrote the majority opinion of the court while Brennan wrote the opinion of the dissent. White, on behalf of the majority, argued the following: The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of it's commands... The wrong condemned by the amendment is fully accomplished by the unlawful search itself and thus the exclusionary rule is neither intended nor able to cure the invasion of the defendants rights which he has already suffered. (United States v Leon) The majority then concluded that the exclusionary rule is therefore a judicially created remedy designed to safeguard the fourth amendment rather than being a personal constitutional right of the party aggrieved. The Court, perhaps in an attempt to appease exclusionary rule proponents, did state that there are exceptions to the good-faith rule as it applies to invalid warrants. More specifically, if a warrant is proved invalid because the officer wrote the affidavit in bad faith (knowingly using false or deceptive information, knowingly using information gathered under unlawful circumstances, etc) then the exclusionary rule could still apply. However, a defendant would have to prove bad-faith which is essentially an impossible task.In laymans terms, unlike the logic of earlier court rulings on the subject, the court believed that the exclusionary rule was created by the judiciary rather than implicitly by the constitution since the fourth amendment doesn't expressly forbid the use of illegally obtained evidence. Therefore, the exclusionary rule should not be applied as an unwavering constructional right with no exceptions. Furthermore, the court makes the absurd claim that the fourth amendment is merely a preventative measure meant to deter unlawful searches. Therefore, since it is only meant to prevent a person from being subject to unlawful searches and seizures, the protections of the fourth amendment are completely exhausted at the moment when police violate an individuals rights by making an unlawful search or seizure. As such, the fourth amendment has no substantive power remaining when the government seeks to use evidence illegally obtained by the police at trial.Justice White then addressed the costs versus the benefits of applying the exclusionary rule. But he did so with a strange duality of logic. White stated that there was insufficient evidence to support the supposed benefits of the exclusionary rule and as such the court must ... conclude that the marginal or nonexistent benefits produced by suppressing evidence... cannot justify the substantial cost of exclusion. (United States v Leon) True, there was no compelling data at the time to exemplify the benefits of the exclusionary rule or even to show that it had a significant impact on police misconduct. No study had been done to determine the benefits or the deterrent effect and these factors would be hard to measure in a numerical sense. However, there was also no compelling data to support the claim that the exclusionary rule created a substantial cost for society. In point of fact, the study cited by the court to support this claim showed that the cost of the exclusionary rule, determined by number of dropped prosecutions and lost convictions, was actually astoundingly low. The study cited suggested that the exclusionary rule resulted in the non-prosecution or non-conviction of between .6% - 2.35% (United States v Leon) of individuals arrested for felonies. A study that merely suggests (not proves) that the exclusionary rule results in the non-prosecution or non-conviction of less than 3 percent of all felonies is hardly what I would call compelling evidence. Therefore, echoing the logic of the court, I would say that the evidence should have shown that the marginal benefits of a good faith exception could not have justified the substantial cost of discarding a crucial safeguard to the fourth amendment.Even in the context of the case in Leon, the court's logic doesn't hold true! As pointed out by Justice Brennan in his dissent, the majority of the evidence seized was ... plainly admissible under the District Court's order therefore the government would clearly still be able to present a strong case to the jury following the court's suppression order. (United States v Leon) So even in the case at hand, the exclusionary rule would not have placed an undue burden on the state which would have resulted in the non-prosecution or non-conviction of the suspects. Not only was the courts logic not consistent with empirical data but the court's logic didn't have a leg to stand on in regards to the case presented in Leon. In addition to this point and refuting the claims of the court over the cost of the exclusionary rule, Justice Brennan cited studies which further demonstrate the extremely low cost of exclusion of illegally obtained evidence. He began:... the court suggests that society has been asked to pay a high price... as a result of excluding relevant physical evidence in cases where the police... have made only an objectively reasonable mistake concerning the constitutionality of their actions. But where is such evidence? (United States v Leon) He then refuted the claims of the court by citing a 1979 study from the General Accounting Office which showed (not suggested) that ... only .02 percent of all felony arrests are declined for prosecution because of potential exclusionary rule problems... He continued Of course, these data describe only the costs attributable to the exclusion of evidence in all cases; the costs due to the exclusion of evidence in the narrower category of cases where police have made objectively reasonable mistakes must necessarily be even smaller.(United States v Leon) It is unclear to me exactly why the court demanded substantial evidence in order to accept the benefit of the exclusionary rule while it was perfectly willing to accept marginal evidence to believe the claim that the rule created a high cost to the criminal justice system. But none the less, this metric was used to measure the cost and ultimately the court accepted it as fact.In summation of the majority opinion, White concluded by stating that there was no reason to believe ... that the exclusion of evidence seized pursuant to a [invalid] warrant will have a significant deterrent effect on the issuing judge or magistrate. Although there is not metric by which one can determine the deterrent effect that exclusion of evidence would have on magistrates, the repercussions of not excluding evidence obtained by invalid warrants could be (and subsequent to Leon, have been) devastating. This point was addressed at length by Brennan in his dissent, he states:

A chief consequence of today's decisions will be to convey a clear and unambiguous message to magistrates that their decisions to issue warrants are no insulated from subsequent judicial review. Creation of this new exception for good-faith reliance upon a warrant implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will from no on have virtually no consequence: If their decision to issue a warrant was correct, the evidence will be admitted; if their decision was incorrect but the police relied in good faith on the warrant, the evidence will also be admitted. Inevitably, the care and attention devoted to such an inconsequential chore will dwindle. (United States v Leon)Unfortunately, Brennan's fears couldn't have been more true. Author and investigative journalist Radley Balko discussed the effects of US v Leon on the warrant process in his book Rise of The Warrior Cop: The Militarization of America's Police Forces. While interviewing police officers for his book, former narcotics officer Russ Jones described the difference in the warrant process prior to and after Leon. He stated When I first started writing search warrants, I had to take it to the D.A. Then I'd take it to the judge, who also gave it a close look. The judge always read the warrant, always asked questions. (Balko 184) But by the time his tenure in law enforcement was ending in the late mid 90s ... the DEA no longer needed to have warrants reviewed by a federal prosecutor and often the judge wouldn't even read it. It just became a rubber stamp process... (Balko 184)To reflect this claim in empirical data, Balko cites a a study done in the later half of 1984 by the National Center for State Courts (NCSC.) The study showed that, as a result of the decision in Leon, magistrates spent an average of two minutes and forty-eight seconds reviewing affidavit warrants before (almost always) approving the warrant." (Balko 185) The study also presented evidence which suggested that police shop for magistrates to approve warrants, a process whereby officers ... seek out magistrates with a reputation for approving warrants quickly and with no hassles, and avoid those who ask questions.(Balko 185) In one city, over the period of the study, ... a single magistrate approved 54 percent of the search warrants... The most popular magistrate in another city had rejected just one search warrant in fifteen years on the bench... (Balko 185) If these results weren't troubling enough , the study stated that ... most of the police officers interviewed could not remember having a search warrant turned down. So much for judicial diligence.The obvious lack of care and attention of magistrates reviewing search warrant affidavits was shown again by a Denver Post investigation in the year 2000. The investigation centered around the alarming rate of approval for no-knock raids, where police violently force their way into homes without needing to knock and announce their presence to the occupants inside ( I will go into greater detail about no-knock raids later.) The burden of proof is supposed to be relatively high for no-knock raids where police officers are supposed to prove to a judge that forced entry is necessary in order to prevent disposal of evidence or to prevent the suspects from violently resisting police entry into the home. Yet contrary to this requirement, many of the judges in Denver were approving no-knock warrants for police who hadn't even requested them. The investigation showed that 19 unrequested no knock warrants had been issued over the 12 month period between February 1999 and February 2000. The pose reported: The number of authorized no-knocks could have been higher. Three regular search warrants nearly became no-knock warrants when the judge reviewing them began to sign the authorization, records show, then stopped in mid-signature, apparently realizing the mistake. (Migoya 2.)The paper also discovered that of all the no-knock warrants served where police asserted in their affidavit that they would find weapons during the search, only 20 percent of those actually yielded weapons. To add to the lack of protocol, the Denver Police Department requires that all no-knock raids be pre-approved by the district attorneys officer. However, in nearly one third of the searches, this never even happened. In addition to all of this, all of the no knock raids were authorized merely by a police officer claiming that confidential informants told them that the suspect was armed or likely to dispose of drug evidence, meanwhile no independent corroboration was done to verify these claims. As if all of this wasn't shocking enough, the response of from the head of the Denver Criminal Court system is very telling of the situation. When confronted with the results of the study, Judge Robert Patterson had this to say, If you sign your name 100 times you can look away and sign in the wrong place. We may, just like anyone else, sign something and realize later that it's the wrong place or the wrong thing. (Migoya 3.) You would expect this type of statement to be uttered by an overworked grade school teacher who made a clerical error or a grading error with a students grade, situations which are entirely fixable and thus deserving of such a feckless response. However, the reality is that these judges were allowing police to kick in the doors of suburban houses in the middle of the night, detonate flash bang grenades and hold the occupants at gunpoint.Needless to say, the consequences of a botched no-knock raids (especially where a no-knock raid is not necessary) can be deadly and since the consequences can be deadly to those involved a very particular amount of care and attention should be practiced when issuing search warrants for no-knock raids. If there is one area above all other in our justice system where inattentiveness should be unacceptable, it should be in the issuance of no-knock search warrants. Judge Patterson, however, clearly did not share this sentiment, which to me displays the exact type of judicial carelessness that Justice Brennan was afraid of when he wrote the dissent for Leon. Between the Denver Post investigation, the personal account of an ex-narcotics officer and the NCSC study it is hard to ignore the fact that Justice Brennan's fears about the effects of the Leon ruling have, at least to some extent, become a reality. The whole issue of the degradation of the warrant process can be perfectly summarized by the closing statement of Justice Brennans dissent in US v Leon. He began by stating that when the public demands increased efforts from the government to combat crime, it is often very easy for government officials to seek expedient solutions. The relaxation of Fourth Amendment standards seem to be, as he states, tempting, costless means of meeting the public's demand for better law enforcement. (United states v Leon) However, society ultimately pays a hefty price for that expediency in law enforcement because the rights guaranteed in the fourth Amendment are not mere second-class rights but belong in the catalog of indispensable freedoms. Once lost, such rights are difficult to recover.(United states v Leon in reference to Brinegar v United States) I could not agree more. Furthermore, I believe that condoning the loosening of Fourth Amendment standards for the sake of expediency sets the precedent that the standards of the Fourth Amendment can be loosened whenever it becomes a burden on those who seek expediency in the criminal justice process. To compare the situation to a slippery slope is a severe understatement.The decision in US v Leon did have a tremendous detrimental effect on the warrant process and, to some extent, on the Fourth Amendment as a whole. Yet to claim that it was the only ruling to have tainted the warrant process would be dishonest. The decision reached in Leon was coupled with the ruling reached a year prior in Illinois v Gates (1983), which dealt with the use of confidential informant and anonymous informant tips as a basis for probable cause. Prior to Illinois v Gates, the standard for dealing with outsider tips submitted to police was dealt with through the Aguilar-Spinelli test, also known as the two prong test.The Aguilar-Spinelli test gets it's namesake from the Supreme Court Cases which helped shape it, Aguilar v Texas (1964) and Spinelli v United States (1969). As aforementioned, the Aguilar-Spinelli is often called the two prong test with the two prongs being the credibility/reliability prong and the basis of knowledge prong. Aguilar v Texas established the credibility/reliability prong and Spinelli v United States established the basis of knowledge prong. A brief overview of the two cases is necessary in order to better understand the two prong test as a whole, so I'll begin with Aguilar v TexasAguilar v Texas began in Huston, Texas, when Huston Police Department submitted an affidavit for a search warrant for the property of Nick Alford Aguilar. To support their affidavit, officers claimed that they had received a tip from a confidential informant, who remained unnamed in the application, whom they believed to be credible. According to the informant, Aguilar was in possession of Marijuana, Heroin and Barbiturates for personal use and to sell. The affiants had no personal knowledge or corroborating details regarding the claims in their search warrant application and were solely relying on the information provided to them by the informant. The search warrant was issued regardless, drugs were found at Aguilar's home and he was arrested accordingly. At trial, the defendant filed a motion to suppress the evidence under a fourth amendment violation. The defendant claimed t his fourth amendment rights had been violated because the search warrant had essentially been granted on nothing more than hearsay. The trial court denied the motion and he was subsequently convicted by the state of Texas. On appeal, the appellate court affirmed the conviction which drove the case to the supreme court.When the case got to the Supreme Court the issue at hand was whether or not a search warrant based solely on the tip of an informant comports with the requirements of the Fourth Amendment? After reviewing the facts of the case, the Supreme Court decided against the state and granted Certiorari in a 6-3 decision. The logic of the court was this: The fourth amendment requires that warrants be issued only after a detached and neutral magistrate has made an independent determination that probable cause exists. But in order for the magistrate to reach that determination, they must be provided with sufficient factual allegations to support the conclusion that the information and the informant themselves are both reliable . In short, police cannot solely rely on conclusions that probable cause exists in order to attain a search warrant, they must back up those conclusions with factual support. The magistrate who issued the initial warrant in this case accepted the conclusion of the informant and the police without being presented a shred of factual support to confirm the reliability of the informant or his information. Simply put, the magistrate was presented with a naked conclusion and issued a search warrant based on this conclusion alone. Accordingly, the Supreme Court reversed and remanded the case against Aguilar and effectively established the first rule of the two prong test in the process.Something similar occurred a few years later with the establishment of the second prong in Spinelli v United States. In this case, the defendant was convicted of running an illegal gambling outfit between Illinois and Missouri. He filed a motion to suppress the evidence against him claiming that the search warrant had been issued without a proper basis for probable cause. In specific the FBI's affidavit relied mostly on information provided to them by an informant who claimed that Spinelli was a known gambler and an associate of gamblers. However, the affidavit never stated why the source of the information was reliable. Therefore, according to the defendant, the basis for probable case and thus the entire search was invalid. Well just as in Aguilar, the trial court denied the motion to suppress, the defendant was convicted, the conviction was appealed, the appellate court affirmed and the case went to the Supreme Court. The main question of the Supreme Court was if an informant's tip is acceptable in providing probable cause for the issuance of a search warrant when the tip does not state reasons why the informant is credible and does not include specific details regarding the facts known by the informant (the underlying circumstances which the informant relied upon.) In other words, if there is nothing to prove that the informants tip is reliable and not based solely on rumors, should that tip be acceptable for establishing probable cause? After careful deliberation the Supreme Court again, just as in Aguilar, overturned the conviction and granted Certiorari in a 5-3 decision (Justice Marshall did not participate in the decision making it an 8 vote decision instead of the usual 9.)The court stated that the tip was inadequate under the standard set in Aguilar since the affidavit set forth no reason to believe that the informant was reliable. Furthermore, the tip did not sufficiently state the underlying circumstances from which the informant had concluded that Spinelli was involved in criminal activity nor did the informant sufficiently detail Spinelli's activities to enable the agents to know that he was relying on more than casual rumors or the general reputation of the petitioner. Therefore, the case was reversed and remanded and the second prong of the two prong test was created.In summation, the Aguilar-Spinelli Test can be described as such. When police seek to attain a warrant from a magistrate two conditions must be satisfied: 1) The magistrate must be informed of the reasons to support that the informant is reliable and credible; 2) The magistrate must be informed of some of the underlying circumstances relied upon by the informant. This, in so many words, is the original test which the tips of informant's must have passed in order to serve as a valid basis for probable cause. But the desire of expediency struck yet again and the standards of the fourth amendment were loosened once more to appease that desire. This brings us to Illinois v Gates, where the two prong test would be abandoned for a new and much more lenient totality of the circumstances test.The case in Gates started when the Bloomingdale, Illinois Police Department received a letter from an anonymous informant. The informant asserted that Sue and Lance Gates were drug traffickers who frequently made trips to Florida to purchase Marijuana which they would trafficked back to Illinois for sale and distribution. The letter described the modus operandi of the couple in great detail thus the police began observing the Gates' residence in order to corroborate the informant's tip with their own findings. The letter was only partly correct in it's description of the couple's modus operandi, but the police determined that it was enough corroboration to justify an application for a search warrant for the Gates' house. The police applied for an obtained the warrant as soon as the couple left on a plane from Illinois to West Palm Beach, Florida. The search warrant was executed as soon as the couple returned home and the police found marijuana and weapons in the couple's home and automobile.At trial, the trial court claimed that the anonymous tip (the basis for probable cause) received by the police did not satisfy the Aguilar-Spinelli test and thus the search warrant was invalid. The logic that they presented was that, although the search turned out to be fruitful, there was no indication in the letter of the basis of knowledge of the letter writer, nor was there anything to substantiate his/her reliability. In addition to this, the modus operandi of the couple as described in the letter and later corroborated by the police were seemingly innocent actions that were not indicative of criminal activity, therefore the police had no real basis for establishing probable cause aside from the naked conclusions drawn by the informant. Unsatisfied with the results, the state appealed but the appellate court affirmed the decision of the trial court on the same grounds: The anonymous letter failed to satisfy the Aguilar-Spinelli test and thus the search warrant should have never been issued. This ruling was affirmed once again when the case was brought before the Illinois Supreme Court. Finally, the case reached the US Supreme Court where the interpretation of the situation completely changed.The issue before the Supreme Court was essentially whether or not the Aguilar-Spinelli test should be replaced with a test for establishing a basis for probable cause that was less rigid and less hyper-technical than the two prong test. Illinois suggested a totality of the circumstances test to replace Aguilar-Spinelli. The test would use the prongs of the Aguilar-Spinelli test but they would be considered guidelines rather than rigid requirements. To further elaborate on this, under the two prong test both prongs would need to be satisfied in order for an informants tip to be considered as a valid basis for probable cause. Yet under the totality of the circumstances test, if there is little or no evidence to satisfy one of the prongs but there is sufficient evidence to support the other then the informant's tip would be considered a valid basis for probable cause. In laymans terms, the evidence used to satisfy one of the prongs could compensate for the lack of evidence needed to satisfy the other prong, ultimately discarding the logic and standards developed with Aguilar and Spinelli.After reviewing the facts, the Supreme Court regrettably ruled 6-3 in favor of Illinois, thereby abandoning the two prong test for the much more lenient totality of the circumstances test. The opinion of the majority was written by Justice Rehnquist who was joined by Justices Burger, Blackmun, Powell, O'Connor and White. Among the dissenters were Justices Brennan, Marshall and Stevens. The majority argued the following: An anonymous letter which outlines specific modus operandi, the majority of which are later corroborated by independent investigation by police, is within the basis of probable cause requirements of the fourth amendment. Probable cause is a fluid concept and not readily reduced to a set of hyper-technical and rigid rules. Ergo, a totality of the circumstances test should be applied rather than the rigid and overly technical Aguilar-Spinelli test. Very strong evidence as to one prong can make up for the weakness of the other prong. Thus the circumstances of the situation should be viewed in totality and from all that information the magistrate can then decide if the informant provided reasonably trustworthy information.There are multiple problems with the logic of this ruling as pointed out by Justices Brennan and Stevens in their separate dissents. To begin, Brennan started out by citing Nathanson v United States (1933) where ...the court held invalid a search warrant that was based on 'mere affirmation of suspicion and belief without any statement of adequate supporting facts' therefore, Under the fourth Amendment, an officer may not properly issue a warrant... unless he can find probable cause... from facts or circumstances... Mere affirmance of belief or suspicion is not enough. (Illinois v Gates.) Therefore, there is a very special problem with using hearsay information to support the issuance of a search warrant, Brennan contended, ...because informants, unlike police officers, are not regarded as presumptively reliable or honest... If the conclusory allegations of a police officer are insufficient to support a finding of probable cause, surely the conclusory allegations of an informant should a fortiori be insufficient. (Illinois v Gates.)Brennan continued this line of argument by stating that until the ruling in Gates, the court never addressed the application of the two prong test to anonymous informants. But in concurrence with the logic presented in Nathanson, Brennan argued about the reliability of anonymous informants; By definition, nothing is known about an anonymous informant's identity, honesty or reliability... (Illinois v Gates.)Therefore, he concluded:... there certainly is no basis for treating anonymous informants as presumptively reliable. Nor is there any basis for assuming that the information provided by an anonymous informant has been obtained in a reliable way. If we are unwilling to accept conclusory allegations from the police, who are presumptively reliable, or from informants who are known, at least to the police, there cannot possibly be any rational basis for accepting conclusory allegations from anonymous informants. (Illinois v Gates.)This rationale makes a lot of sense. If police officers and confidential informants are unable to attain a basis for probable cause based on their conclusory allegations, suspicions or beliefs about a suspect then how can the court reasonably accept the conclusory allegations of anonymous informants for the same purpose? It is completely logically inconsistent. But the inconsistency doesn't stop there. In the conclusion of his dissent, Brennan pointed out that of the four court cases cited to support the totality of the circumstances test only one was decided subsequent to Aguilar, Jaben v United States (1965), and it wasn't even inconsistent with the standards established by Aguilar. The other three decisions had been made prior to Aguilar, making them inconsistent Aguilar and thereby the standards of the court at the time. Despite this, it is painfully obvious that the court did not see them as inconsistent with Aguilar.The last excerpt of Brennans conclusion, like most of his dissenting opinions, was undeniably heated. He began by stating that the replacing of Aguilar-Spinelli with the totality of the circumstances approach would provide no assurance that magistrates, instead of the police or informants, would make determinations of probable cause; that the test imposes no structure on probable cause inquiries conducted by magistrates; and that it invites the possibility that search warrants may be authorized on less than reliable information from a credible and honest person. To conclude, Brennan warned that the further relaxation of fourth amendment standards as decided in Gates threatened to ... obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police state, where they are the law. (Illinois v Gates.) While this warning might have seemed a bit farfetched at the time, the countless violent drug raids on innocent civilians based on false information would verify his fear that warrants would be granted on less than reliable information. In addition, the shocking lack of police accountability for the loss of innocent life in a great number of these raids would prove that, to some extent, Brennan's fears were actually not far removed from reality.I greatly enjoyed Brennan's fiery rhetoric, but it is my opinion that the dissenting opinion of Justice Steven's was far more important in Gates as it discussed some very important logical missteps of the court in their decision. Steven's dissent was heavily focused on the fact that despite police corroborating the modus operandi of the couple as described in the anonymous informant's letter, none of the actions observed by the police were at all illegal or suspicious. Furthermore, the activities of the couple as described in the letter were in many cases not even consistent with police observations. Aside from the lack of illegality of the activities observed, the discrepancy between the information provided and the activities observed tells us two things. First, the police knew that the informant was incorrect in his/her description of quite a few of the activities described, which means that the basis of knowledge of the informant was inherently questionable; To be precise, the police had a clear reason to believe that the information might have been based on casual rumor or second hand hearsay rather than first hand knowledge or experience. Second, considering the conflict between the activities described and the activities observed, the police had a reasonable basis to question the more serious criminal allegations as described in the letter.Stevens' exact words provide us with greater detail. He begins by stating that the informant claimed that Sue Gates would drive the car to Florida, where it would be loaded up with drugs, her husband would drive the load back while she flew home. The itinerary predicted ...always kept spouse in Bloomingdale, suggesting that the Gates did not want to leave their home unguarded because something valuable was hidden within. (Illinois v Gates.)The couple was allegedly guarding $100,000 worth of drugs in their basement as stated by the informant's letter. However, That inference obviously could not be drawn when it was known that the pair was actually together over a thousand mils from home. (Illinois v Gates.) This detail should have cast some doubt on the informants hypothesis regarding the $100,000 worth of drugs in the Gate's basement.Justice Stevens concluded that this discrepancy in detail ... made the Gates' conduct seem substantially less unusual than the informant had predicted it would be... It would have been odd if, as predicted, Sue had driven down to Florida on Wednesday, left the car, and flown right back to Illinois. But the mere facts... Are neither unusual nor probative of criminal activity. (Illinois v Gates.)This fact alone, Stevens claimed, undermined the reasonableness of relying on the anonymous informant's tip as a basis for making a forced entry into a private residence. Steven's then passed heavy criticism on the court by stating Given that the note's predictions were faulty in one significant respect, and were corroborated by nothing except ordinary innocent activity, I must surmise that the court's evaluation of the warrant's validity has been colored by subsequent events (Illinois v Gates.) In short, Stevens felt that the court's decision was completely influence by the fact that drugs were actually seized while no consideration was place on the fact that there was no substantial evidence to reasonably suggest that this would have been the exact outcome if a search warrant was executed at the couple's residence.There are two main issues with the Illinois v Gates ruling. First, the totality of the circumstances approach is so permissive in it's use of informant tips for probable cause that it increases the likelihood of search warrants being issued based on false information, casual rumors, etc. Second, the decision essentially showed us that an anonymous tip, alleging criminal activity and supporting those allegations with detailed description of otherwise innocent non-criminal actions could be used as a basis for violent forced entry into a private residence. This is particularly troubling because, as Justice Brennan pointed out, it paves the way for informants to give misleading or false information to police which could result in the search of an innocent home. Due to the highly violent nature of paramilitary style drug raids, this puts the lives and safety of both civilians and officers alike at great risk. A perfect example of this would be the 1992 drug raid of San Diego resident Donald Carlson. In August of 1992 the DEA, working with US Customs agents, received information from a confidential informant that Donald Carlson, a fortune 500 executive for a local computer company, was working with South American drug smugglers. The informant, known only as Ron, alleged that the South Americans used Carlson's suburban home as a cocaine warehouse. It is important to note that Ron had been charged with lying to law enforcement in January of the same year, while Carlson had no criminal record of any kind. Yet despite this, the DEA and US Customs agents filed an affidavit based solely on the tip of the informant.On August 26, 1992 Carlson was awoken in the middle of the night to a violent pounding on his door. Mr. Carlson, fearing an armed burglary, tried to call the police and yelled at the intruders to identify themselves. When he was given no response and the violent pounding continued, Carlson drew his pistol and shot two warning shots at the door in an attempt to scare the intruders away. The intruders, who were US Customs and DEA agents, responded by hurling a stun grenade into the house, kicking the door down and then shooting Carlson in the back, chest, leg and arm. One of Carlson's shots struck a federal agent, who only received a superficial leg wound. The wounds sustained by Carlson would lead him to have a paralyzed diaphragm and the bullet that traveled through his lung and lodged near his spine reduced his lung capacity by half. After a search of the house, federal agents found nothing and determined that they had been mislead by their informant. 18 months after the raid, Carlson received an official apology for the raid by the US government who accepted full responsibility for what happened. (Innocent Man Shot in Drug Raid Gets U.S. Apology 1) But this apology only came after Carlson sued for $20 million. He eventually settled for $2.7 million.The Donald Carlson raid showed the exact danger that the leniency of the totality of the circumstances rest poses. But the raid also highlighted the extraordinarily violent nature of no-knock paramilitary style drug raids. Although Carlson was suspected of drug trafficking, these violent drug raids are not exclusively used on high profile trafficking targets. In fact, no-knock raids have proliferated to the point where they are used to execute the majority of drug warrants in this country, even for low level offenders guilty of minor possession. This brings us to the problem that no-knock raids pose on both privacy rights and the safety of the individuals involved. But in order to understand what a no-knock raid is and it's exact purpose, we must first examine the traditional knock and announce warrant originally used by law enforcement almost exclusively.Knock-and-announce searches are pretty self explanatory by their name; police officers, armed with a search warrant for a residence, knock at the door of the targeted residence, state their purpose and then briefly wait in order to give the occupant a chance to open the door and peacefully cooperate with law enforcement officers. This practice comes from English Common Law and is in direct observance of the age old Castle Doctrine. Although the Castle Doctrine is presently most often referenced in gun control debates, it's legal application is farther reaching than these debates give it credit for. In the simplest of terms, the Castle Doctrine is the based upon the idea that a man's home is his castle. But it derives from an older and broader belief that a man's home should be protected as his place of peace, refugee and sanctuary. The idea can be dated as far back as the Ancient Roman Statesman Cicero who stated 'Quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?' (What more sacred, what more strongly guarded by every holy feeling, than a man's own home?) (Balko 6) We can infer from this statement the sentiment that a man has the right to repel criminal intruders from his home but also that a man is protected against the state violating the sanctity of his home through searches-- there were exceptions to this idea but they were limited, only used as a last resort and only under conditions where the individual was protected from unnecessary violence in his own home. As pursuant to this idea, the knock-and-announce rule came to flourish under English Common Law some centuries later. As the drug war progressed, the knock-and-announce rule and it's ancient foundation, were ultimately replaced with no-knock searches. Unlike knock-and-announce searches, no-knock searches are searches in which the court has authorized officers to break into a private residence without first alerting the occupants to their presence and stating their purpose. Thereby, not affording the occupants with the option to peacefully comply with police before having their house broken into and subject to violent (sometimes lethal) search tactics. No-knock warrants and the ignoring of the knock-and-announce requirement are justified by what's known as exigent circumstances, or circumstances which an officer knocking and announcing would detrimentally affect the results of the search. Acceptable Exigent Circumstances, as laid out in Richards v. Wisconsin (1997), are circumstances under which knocking and announcing could create a situation where a suspect flees, destroys evidence or is afforded the opportunity to respond to the police with violence. An exigent circumstance also exists in a situation where someone inside the house is in immediate danger, but this circumstance is almost never applied to drug warrants.It is my opinion that there is an inherent conflict that exists within the logical premise for no-knock searches. By their very nature, no-knock raids are meant to circumvent the destruction of evidence, the fleeing of a suspect or the chance of a shootout with a suspect. But no-knock raids are, in the majority of cases, completely unnecessary for achieving these ends as there are other non-violent methods which police can take. The easiest way to avoid all of these circumstances while still being able to property execute the warrant would be to stake out the targeted residence and apprehend the suspect as they are leaving the property. Considering that, in most cases, significant investigation is done to determine the routines of drug traffickers, police would know the best times to conduct these searches as pursuant to the times that the suspect is usually not home or about to leave the property. This type of method should be ideal for two reasons; First, if a warrant is executed at the wrong address or based on false intelligence, it allows the innocent individual to be cooperative with police and prevent potential deadly use of force from being initiated in the midst of confused chaos. Second, in the event that an individual is actually guilty, it can help police avoid the potential destruction of evidence, fleeing of a suspect or violent shootout that they hope to avoid.Unfortunately, the proliferation of no-knock raids is troubling on it's own considering their violent nature and the potential for the invasion of privacy of an innocent individual. But what's more troubling is that SWAT teams are being used more and more to execute drug warrants in the place of regular police officers. This trend of is a byproduct of the of the rise of militarized policing in America. The situation can be exemplified by the following statistics taken from Radley Balko's book on militarized policing in America: In 1980, the approximate number of paramilitary police raids in the United States was 3,000. In 2001 that number skyrocketed to 45,000. In Orange County, Florida police deployed SWAT teams 619 times between 1993 and 1997. 94 percent of those deployments were undertaken to serve drug warrants. The percentage of American cities of 100,000 or more that had a swat team in 1982 was 59 percent. By 1995 that number was 89 percent. The average number of times those SWAT teams were called into action in a year? 13 times in 1980, 38 times in 1989, 52 times in 1995. Finally, the national percentage increase in the number of police departments using SWAT teams for proactive patrol from 1982 to 1997: A staggering 292 percent. (Balko 237-238)When Los Angeles police chief Daryl Gates created the first SWAT team in America in 1966, he promoted the idea as a way to resolve situations where normal street police would be inefficient. Such as hostage situations, mass shootings in public places and armed bank robberies where the suspects outgunned the authorities (such as the North Hollywood shootout of '97.) At face value, no one could have guessed that SWAT teams would eventually be used in nearly every American city to execute search warrants against individuals accused of non-violent, consensual crimes such as drug use. But over the next few decades, the signs were starting to pop up everywhere that indicated a shift in purpose for SWAT. Such as when Daryl Gates himself and a posse of SWAT officers drove an APC with a 14 foot steel battering ram into the side of a suspected crack dealers house in 1985. Inside, they found a woman and her three children eating ice cream but no crack cocaine. (L.A. Police Battering Ram 1) And this is just one instance out of thousands where police have used a disproportionate use of force to enforce the war on drugs in America. It is my opinion that the permissibility of these kinds of tactics are directly attributable to our weakening of the Fourth Amendment protections. In the desire for expediency, we have stumbled down a slippery slope where our permissive attitude toward invasions of privacy have lead us to a point where there is not much privacy left to invade or safeguards left to invalidate. Thus, we are left to wonder, where are we heading? Towards restoration of privacy rights or towards their further erosion? I fear the answer to be to latter.I found a number of Supreme Court Cases which demonstrate exactly that. Such as the case in Segura v United States (1984), where police broke into a new york city apartment while a search warrant was pending and hung out for 20 hours until the warrant was obtained. The Court ruled their actions to be in compliance with the constitution. Or in Nix v Williams (1984), where the court ruled that the exclusionary rule doesn't apply to evidence found during an illegal search that would have been found anyways if the search had been legal. Or in Florida v Riley (1989), when the court determined that police officers do no need a warrant to fly a helicopter 400 feet above a residence in order to investigate what is taking place behind the walls of curtilage: The justification for this ruling was that any citizen flying at 400 feet could plainly observe a persons yard behind their walls, even though civilian aircraft are required by the FAA to maintain a minimum altitude of 1,000 feet when over cities and 500 feet over rural areas. These are just a handful of examples that I pulled while researching 4th amendment supreme court decisions, but there are many more just like it- most of which stem from the 1980's and 1990's. But the Supreme Courts efforts to weaken the fourth amendment stretch well beyond the 80's and 90's. What's worse is that their past decisions often result in the further reduction of the protections of the fourth amendment.A perfect example can be found just five months ago in Heine v North Carolina (2014.) The Supreme Court ruled in an 8-1 decision that searches and seizures which resulted from an officers misunderstanding of the law were both lawful and constitutional, so long as the officer's misunderstanding was reasonable (although the court provided no definition as to what a reasonable misunderstanding is.) The case was based on an officer who discovered cocaine in the vehicle of Nicholas Heine during a traffic stop. The traffic stop was initially made because Heine was driving with an out brake light. However, North Carolina law only requires one working brake light, therefore Heine was pulled over for an offense that he didn't commit because the offense never actually existed. It would seem to be common sense to then throw out the evidence against him because the traffic stop was unlawful, making the subsequent search and seizure unlawful as well.However, common sense doesn't always apply when past decisions have removed common sense from the equation entirely. Anyone with an understanding of fourth amendment law would have known that the decision of the court over the lawfulness of the seizure and admittance of the evidence was decided long before the actual decision was reached: Between good faith exceptions for police mistakes and the inevitable discovery doctrine for illegally obtained evidence, the court already had a road map laid out for them to rule the exclusionary rule as inapplicable to this scenario. The court then took the opportunity to deliberate over a second issue... Whether or not the courts should include an officer's understanding (or misunderstanding) of the law in the reasonableness inquiry when deliberating over fourth amendment violations. Prior to Heine, the only individuals who were relied on to interpret the law were the courts, police officers were meant to merely enforce the laws. In fourth amendment violations, the courts would measure a police officers understanding of the facts revolving around the situation and evaluate the actions of the officer accordingly. An officers understanding of the law was not considered pertinent because an officer's understanding of the law has no bearing on the actual meaning of the law itself. But with the decision reached in Heine, officers now have their understanding of the law injected into the reasonableness inquiry and is subject to the same amount of consideration as the factual evidence regarding the violation in question. The repercussions of this new approach will be, in my opinion, advantageous to the police whom already enjoy a great deal of freedom from fourth amendment restrictions and very detrimental to the individuals right against unreasonable searches and seizures. The lone dissenter in Heine, Justice Sotomayor, writes in her opinion that departing from the traditional approach to the reasonableness inquiry means ...further eroding the fourth amendment's protection of civil liberties in a context where that protection has already been worn down (Heine v United States 3.) She expands on this by claiming that the power and influence of police in court proceedings is greatly expanded by Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated. (Heine v United States 4.) It is too early to yet tell if her fears are correct and if this decision will have disastrous affects on the fourth amendment, but it is my opinion that it undoubtedly will.Given the continuing trend of judicial expansion of police power, one is left to wonder how certain police practices that are currently up for legal debate will be decided upon in the near future? One such example would be the recent use of Stingray devices, a device which mimics a cellphone tower and tricks all devices in a given radius into giving their location and data to the pseudo-tower. Typically, the device is placed in an aircraft which then flies over a specific area, gathering the information of all users in that area. The information collected in the area is then filtered out until the target's information is all that is left. Law enforcement claim that it is an indispensable tool in fighting drug traffickers, but since the Stingray collects the location and data of all devices in a given area and not just the targeted device- is this collection of data a violation of the innocent individual's privacy even if their data is not used? Given the lack of transparency over how these devices are used, how is the public to know that these devices are not being misused in order to gather people's personal information? Furthermore, can police operate these devices without a search warrant as they currently do? There is no doubt in my mind that this issue will be brought to the Supreme Court within the next decade, if not sooner, just as there is no doubt in my mind that the Court will ultimately rule on the side of expedient law enforcement solutions and expanded police power-- All to the further detriment of fourth amendment rights.In conclusion, given the information provided, it is safe to say that fourth amendment rights have been significantly reduced following the launch of the war on drugs. It is also reasonable to expect that the longer that we pursue the fruitless venture of drug prohibition, the more our civil liberties will be eroded as a means of advancing and expediting the agenda of drug prohibition. The American public is often told that the war on drugs is for the benefit of our children, for our communities, for our society as a whole; that the heavy handed tactics and their collateral damage, the Donald Carlsons of the world, are tragic but necessary. Just as the sacrificing of some privacy rights are necessary to fight back against drug traffickers. To which I reply, what exactly is all of this necessary for? What do we believe that we are achieving with all of this? The eradication of the flow of drugs on our streets? The FBI can tell us just how laughable that assertion really is. For we have now spent decades eroding the fourth amendment to expedite the law enforcement process for the fight against drug traffickers and even still less than 18 percent of all drug offenders arrested in this country are arrested for the sale and manufacture of illegal drugs while 82 percent are arrested for simple possession. (Federal Bureau of Investigation 2012.) The numbers are stark and they do not lie: We are allowing one of the most central freedoms of our society to be chipped away and we are condoning the terrorization of countless innocents so that we can disproportionately arrest simple non-violent offenders over the dangerous drug traffickers that these policies are meant to help apprehend. This begs the question, is this really necessary? More importantly, is this really justifiable? It is my opinion the answer to both of those is a resounding no. For when the drug war is ultimately abandoned, and it will be abandoned, the innocent blood would have been all for naught and all we will be left with is the bitter taste of defeat and remorse. But what is more troubling is that we will be left with a fourth amendment that is nothing more than a form of words, affording no real protection to anyone against a government with arbitrary power for search and seizure. Which is why these rights and their reduction should not be taken lightly, especially when they are sacrificed for such a fruitless cause. The benefits simply do no outweigh the costs. Thus, I conclude with an terrifyingly relevant admonition about the fourth amendment from Justice Jackson in Brinegar v United States (1949):Fourth Amendment rights are not mere second-class rights, but belong to the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government...

Works Cited

Aguilar v. Texas. Supreme Court of the United States. 15 June 1964.Supreme.justia.com. N.p., n.d. Web. .

Balko, Radley. "Chapter 1: From Rome to Writs."Rise of the Warrior Cop: The Militarization of America's Police Forces. New York: PublicAffairs, 2013. 6. Print.

Balko, Radley. "Chapter 7: The 1990's- It's All about the Numbers."Rise of the Warrior Cop: The Militarization of America's Police Forces. New York: PublicAffairs, 2013. 184-85. Print.

Balko, Radley. "Chapter 7: The 1990's- It's All about the Numbers."Rise of the Warrior Cop: The Militarization of America's Police Forces. New York: PublicAffairs, 2013. 237-38. Print.

Brinegar v United States. Supreme Court of the United States. 27 June 1949.Www.law.cornell.edu. N.p., n.d. Web. .

Federal Bureau of Investigation. Persons Arrested for Drug Abuse Violations in 2012 FBI. December 2012. Web. 9 April 2015.http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/persons-arrested/persons-arrested

Florida v Riley. Supreme Court of the United States. 24 Jan. 1989.Http://caselaw.lp.findlaw.com/. N.p., n.d. Web. .

Heine v United States. Supreme Court of the United States. 15 Dec. 2014.Http://www.supremecourt.gov/. N.p., 15 Dec. 2014. Web. .

Illinois v Gates. Supreme Court of the United States. 8 June 1983.Http://caselaw.lp.findlaw.com/. N.p., n.d. Web. .

"Innocent Man Shot in Drug Raid Gets U.S. Apology."Los Angeles Times[Los Angeles] 3 Mar. 1994: n. pag.Http://articles.baltimoresun.com/. Baltimore Sun. Web. .

"L.A. Police Battering Ram."Los Angeles Times[Los Angeles] 20 Feb. 1985: n. pag.Http://articles.latimes.com/. Web. . Mapp v Ohio. Supreme Court of the United States. 19 June 1961.Www.law.cornell.edu. N.p., n.d. Web. .

Migoya, David. "Judges Rubber-stamp No-knocks: Easy Approval among Flaws in Process, Records Show."Denver Post[Denver] 27 Feb. 2000: n. pag.Www.ire.org. Web. .

Nix v United States. Supreme Court of the United States. 11 June 1984.Supreme.justia.com. N.p., n.d. Web. .

Richards v Wisconsin. Supreme Court of the United States. 28 Apr. 1997.Www.law.cornell.edu. N.p., n.d. Web. .

Segura v United States (1984). Supreme Court of the United States. 5 July 1984.Http://caselaw.lp.findlaw.com/. N.p., n.d. Web. .

Spinelli v. United States. Supreme Court of the United States. 27 Jan. 1969.Supreme.justia.com. N.p., n.d. Web. .

United States v Leon. Supreme Court of the United States. 5 July 1984.Www.law.cornell.edu. N.p., n.d. Web. .

Weeks v United States. Supreme Court of the United States. 24 Feb. 1914.Scholar.google.com. N.p., n.d. Web.