Welcome to the final article in this series. The first four articles may be found here:
A number of readers of this series have asked what should be done if and when the police come to their door? Can they be lawfully resisted? Can force be used against them? The answer is yes–but probably not, and if it happens, things will almost certainly get bloody.
Keep in mind, gentle readers, that I’m not an attorney, and the law differs in significant ways from state to state. There are, however, general principles of law that apply everywhere, and the law belongs to the layman as well as the attorney and lawman. If you’ve read the first four articles in this series, you have a good idea of who the police are, how they think, and how they tend to react to the public. You now have no doubt that when politicians order the police to seize citizen’s guns, a significant number will refuse to violate the Constitution and the social contract, but enough will side with whatever corrupt majority runs the state. The police, likely the state police, will break down doors, confiscate legal arms, and if resisted, will injure, even kill innocent citizens.
The Use of Force:
The rules on the use of force are the same for all, citizen and police officer alike. The difference is that police officers are often practically immune from the consequences of the wrongful use of force, particularly when acting as a member of a SWAT team, and absolutely when enforcing political rather than legal diktat. They can get away with violations of civil rights, brutality–even murder–that would see the average citizen imprisoned for decades, or even executed.
This is very important: the police, everywhere, may use whatever force is necessary to make a lawful arrest. That includes deadly force if it is required.
This too is very important: Any citizen may use whatever force is necessary to resist an unlawful arrest. However, it is best never to have to do this.
Deadly force may be employed only when a reasonable person would believe that they–or another–face an imminent threat of serious bodily injury or death. Keep in mind that in analyzing the actions of the police, the courts normally adopt the standard of a “reasonable police officer,” which puts the law squarely on the side of the police. This essentially means that the courts accept that the police have training and experience that allow them to recognize imminent deadly threats that citizens may not recognize.
An armed SWAT team, breaking down one’s front door and charging into the home, weapons up and ready to fire, certainly represent an imminent threat of serious bodily injury or death, but because they will virtually always be presumed to have the law on their side the homeowner daring to respond with deadly force will most likely be killed, and the officers emptying their magazines into him will suffer no punishment other than that imposed by their consciences. Unfortunately, for most, this will be small punishment indeed.
Authority to Search:
All authority for the police to search and seize property comes from the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In this process, there are three documents involved: the affidavit, the warrant, and the return.
The affidavit is a sworn statement made by a police officer–usually a detective–that must fulfill all of the elements of the statute(s) involved. It must identify the laws allegedly violated, and provide evidence of why a given person violated those laws, and exactly what property is involved and where it is. It must provide probable cause for a judge to believe that a warrant is justified. Probable cause is observations, facts and circumstances that would cause a reasonable person to believe that a crime has been committed and that a specific person or persons have committed it. In the case of search warrants, it means observations, facts and circumstances that would cause a reasonable person to believe that specific evidence or fruits of a crime are at a specific place in the possession of specific persons.
The affidavit, specifically identifying the crimes committed, the persons involved, specifically identifying the evidence or fruits of a crime to be seized and the places to be searched, is written by an investigating officer who swears that everything in the affidavit is complete, true and accurate. He takes it–usually by hand–to a judge, who reads it, asks any necessary clarifying questions, and either writes a warrant based on the affidavit, or refuses. Sometimes a judge may demand additional probable cause or additional facts and details. If they are not forthcoming, no warrant. Sometimes, judges more or less rubber stamp whatever is put before them. When they do, civil rights are denied and lives can be lost.
The warrant is nothing more than a judge’s written authorization to search, based on the affidavit. Many judges will take a detective’s word, and ask few, if any questions about an affidavit. I’ve written about a number of cases, including the Jose Guerena case, and the George Zimmerman case, where detectives submitted completely inadequate, even deceptive affidavits, affidavits any competent judge should have refused to accept. Taking the links to those related articles will explain in much greater detail the issues involved.
The warrant must specify the crimes involved, and the specific places to be searched and the things to be seized. Warrants almost always have inherent limitations. If the police are searching for stolen automobile tires, they can search anywhere such tires might be found, but not in kitchen drawers, jewelry boxes, etc. If, however, they are searching for jewelry, drugs, cash or similarly small things, they can search anywhere such things might be found.
The police may or may not be legally liable for damage to private property in the execution of search warrants. Much depends on local law. Some agencies that are legally responsible may choose to trash a home out of spite–yes, this does sometimes happen–and essentially dare the victims to sue them to make them pay for the damage. Many people are too intimidated to take up the challenge.
The return is a document that must be returned to the judge authorizing the warrant within a very short time period, usually a day or two, reporting about precisely what was–or was not–found.
Search warrants must normally be served very rapidly, usually within hours of being issued. They must also normally be served only during daylight hours. Any exceptions to these rules must be specifically requested, fully justified, and authorized by a judge, who includes those specific authorizations on the warrant. This particularly applies to no-knock warrants.
No-knock warrants allow the police to simply break into a home without warning. They are commonly issued only when the police can present–in an affidavit–compelling evidence of almost certain deadly danger in servicing the warrant. For example, they can show that the people involved are known to be armed and dangerous and highly likely to resist the service of the warrant with violence.
Normally, police officers are required to simply knock on the door, identify themselves and their purpose and present a copy of the warrant to the person whose home is to be searched. Detectives usually bring uniformed officers and ask them to park their cars visibly to help convince people they’re legitimate. This is enormously important to competent, professional officers who do not want people mistaking them for criminals and trying to use force against them. Any rational officer going to anyone’s home knows they are at a disadvantage. They don’t know the layout, the occupants, their defensive preparations–if any–and a host of other facts that can be dangerous to them. It’s in everyone’s best interests if the residents are relaxed and cooperative, have no doubt about the identities of the police and their legal authority, and have no reason to believe they are in danger requiring an armed response.
If residents are at home, the police will have them sit in one place and watch them while the search is conducted. If not, they will commonly call a locksmith to open the home rather than causing any damage. In most cases, that’s bad public relations (PR), and they will have to pay for repairs. When they leave, they also don’t want to leave the property unsecured. If anything happened thereafter, that would be enormously bad PR. Professional agencies are always concerned about PR.
The Tale of Tom and Steve:
I’ll tell you the story of a search warrant I executed during my days as a detective handling burglary from vehicle cases. Keep in mind that it is almost exclusively detectives that write and execute search warrants. Patrol officers are supposed to handle calls, do quick preliminary investigations, write reports, and move on to the next call. Detectives do more involved investigations and paperwork, like warrants.
In this particular case a young man walked in off the street and said he had been to the apartment of “Steve” and “Tom” (not their real names) who were acquaintances. Steve and Tom had a substantial amount of car stereos, home stereo equipment, cameras, and other similar items, and while not directly admitting it, suggested they stole the items in several burglaries. They also told him, laughing heartily, that they stole four new and expensive wheels and tires off a Honda Accord, leaving it on blocks. They told him details, such as climbing onto the roof of a garage to unscrew the bulb in an outdoor light, leaving the car on blocks, and even told him the name of the street where they stole the tires.
The young man told me that he did not see the tires and wheels, but Tom told him they were locked in their storage closet in the laundry room of the apartment complex. The young man was able to describe much of the property he saw in detail. He said he saw the property at about 9 PM the previous night. It was about 1115 AM the next morning when he spoke with me.
He told me because he wasn’t all that fond of Tom or Steve and because he realized that they made him an accessory to their crimes. He didn’t want to end up in trouble because of it, and thought them just the sort of guys that might try to do just that.
Because I received copies of all vehicle burglary reports every morning, I recognized some of the property as probably matching reported burglaries. I also looked up the wheel/tire theft and found that lo and behold, it happened just as the young man related, right down to the unscrewed light bulb and the Accord left on blocks, and it was indeed on the street he told me as well.
But because warrants must be contemporaneous with observations, and I had some time passing between the young man’s observations and my paperwork confirmation, I went to the apartment complex and checked out the storage locker in the laundry room, and area any member of the public could legally access. As luck would have it, the plywood door to the clearly marked (with the corresponding apartment number) locker was bowed slightly outward, and by merely shining my flashlight through the crack, I could clearly see several tire treads that matched those stolen. Even better, I strolled by the apartment, and they had the drapes wide open! Merely by standing on the sidewalk–where anyone could lawfully be–I could see a widescreen TV and several of the items the young man told me about. No one was home, so I returned to my office and found a TV that matched the set I saw stolen in a home burglary in the county (local sheriff’s jurisdiction) surrounding the city where I worked. Several other items were taken in that theft, and I saw several matching articles through the window.
A judge would probably have given me a warrant even without my observations, but with them, there was no question, and there was no reason for me not to take the time to be sure.
There was no indication that Tom and Steve were aware of my presence or interest, so I wrote a complete affidavit with all of the young man’s information and my own observations, including related report numbers, property descriptions, etc. It took about an hour to gather all of the information, write the affidavit, and another half hour to find a judge. An hour later, I had the warrant.
I coordinated with the patrol division and went to the apartment with two officers about a half hour later. Tom and Steve still weren’t home, and looking through the front window, I could see even more items that matched stolen property lists. We got a key from management, and spent the next three hours searching, photographing, and cataloging all of the stolen property. That single search ended up solving at least 20 burglaries and thefts–the wheels/tires in the storage locker were indeed the stolen items–and implicating many more burglars. The victims were absolutely amazed that we recovered their property, in many cases within only a few days. Tom and Steve, caught red-handed, were more than willing to roll over on their associates–we made a deal that required guilty pleas to multiple felonies–and to fully lay out all of their many crimes.
We had to call for an evidence van to transport all of the stolen goods, and I spent the entire next day in the evidence building recording and cataloguing all of the stolen property. I had to do that immediately so I could get a return to the judge in a reasonable time period.
If Steve and Tom had been there, we would merely have searched them, kept them under watch in a safe place, and searched the apartment. No one would have been in danger; the matter would have been routine. This is the way most search warrants are served across the nation.
Let’s take a case in Connecticut based on what is known about these situations. Keep in mind that each case is unique and must be based on what is known at the time, but warrant requirements, based on the 4th Amendment, do not change.
State Police Investigator Jones has a copy of the paperwork filed by Mr. Bob Smith of 2118 Innocent Street, Anytown, Connecticut, two days after the deadline for registering certain “assault weapons,” and “large capacity magazines.” That paperwork indicates that Mr. Smith wanted to register an AR-15 rifle and thirty round magazines–four–as the law required. Unfortunately, he was two days late, and so, is now a criminal for the mere possession of those previously legal items.
Investigator Jones duly types up an affidavit with that information, including the make, model and serial number of the AR-15 and the make and description of the four magazines, all provided by Mr. Jones on his registration application. He takes it to the judge, who, if he is a competent jurist, tells the officer to take a hike.
What?! What’s wrong? Doesn’t the law say Mr. Jones is now a criminal? Didn’t Mr. Jones incriminate himself by admitting–on an official form–he owned a now-illegal rifle and magazines?
If you realize that the affidavit lacks probable cause, you’ve been paying attention. Investigator Jones can identify the particular items to be seized–naively provided by Mr. Jones in an attempt to be a law-abiding citizen–but that’s it. He has no knowledge of where the Legislature-manufactured contraband is. He can argue all he likes that since Mr. Jones lives at 2118 Innocent Street, the items must be there, but he has no actual knowledge of this and no way to prove it. He has no probable cause to that effect. In fact, since more than three months have passed since Mr. Smith’s abortive attempt to obey the law, Investigator Jones can’t even say that he has any information whatever–other than the three+ month old registration form, to indicate that Mr. Smith actually owns that rifle or magazines. He could very well have followed the law and moved them out of state. He could have given or sold them to out-of-state friends or relatives. In addition, Investigator Jones’ information is not contemporaneous. As incomplete as it is, it’s alsomore than three months old.
In this case, with a competent, honest judge, no warrant; no search.
So Investigator Jones returns, stewing, to his office. He doesn’t have the manpower to watch Smith 24/7 in the hope of seeing him with the rifle or magazines, nor does he have the manpower to run an undercover operation again Smith, who lives a boring, conventional life where low-life, criminal types would stick out like, well, low-life, criminal types. He knows that the police in Anytown are hostile to his desires to enforce the unpopular and probably unconstitutional law. So he calls Smith and, recording the call, asks him if he owns the rifle and magazines and demands to know their location. Politely, Smith declines to answer his questions. Jones threatens him with all of the majesty of the law and the wrath of the state police, but Smith merely reiterates that because Jones is obviously trying to get him to incriminate himself, he has an absolute right under the Fifth Amendment not to answer Jones’ questions. Jones gets nowhere, and fuming, hangs up.
A short time later, Jones is at the door of the judge’s chambers with a new affidavit, this time including his conversation with Smith. His argument is that Smith is obviously hiding something. His refusal to answer Jones’ reasonable questions is evidence of a guilty mind!
Because this judge is honest and takes his oath to defend and uphold the Constitution seriously, he patiently explains that Mr. Smith does indeed have no duty to answer Investigator Jones’ questions, and that Investigator Jones has nothing more than he had with the first affidavit. Smith’s refusal to answer is evidence of nothing. No warrant; no search.
Even if Smith, shortly after trying to register his AR-15 and magazines, was on television admitting that he had the items and daring the police to come to his home and try to take them, the judge should still refuse to authorize a warrant because that seeming admission was not contemporaneous with the affidavit.
Of course, if the judge was corrupt, well-intentioned but determined to be seen as on the side of law enforcement, mistaken or simply lazy, Investigator Jones would soon have a warrant in hand.
Wolves At The Door:
Let’s now fast forward to 2118 Innocent Street in Anytown, Connecticut. In this case, the state police are smart. They’re using unmarked vehicles, and waiting for Mr. Smith to arrive home from work. As soon as he parks his car, he finds Investigator Jones at his door. Jones identifies himself and the troopers accompanying him and asks to be allowed to search Smith’s home. He does not have a warrant. What should Smith do?
Some would say that anyone that does not have anything to hide should allow the police to do anything they want. Not a good idea. What sane human being wants hostile, snoopy strangers searching every nook and cranny of their home? Absent a warrant, the police have no ability to enter or search private property. In fact, if Smith chooses, he may order them to leave, and if they stay, they are trespassing. Good luck on getting a prosecution on that, but it may be useful in a later lawsuit. In such a case, Smith is completely on the side of the law in refusing a search. As soon as the police leave, Smith should be on the phone with his attorney.
What if, in this situation, the police decide to bull ahead without a warrant? What should Smith do? Continue to tell them they do not have permission to search, call his attorney, but take no physical actions against them, including standing in their way. Smith should do nothing to give the police an excuse to use force against him or any member of his family.
Let’s say the police are again smart, and approach Smith when he pulls into his driveway. Jones identifies himself and the troopers accompanying him–they’re in uniform–and produces a copy of the warrant, which he gives Smith.
What should Smith do? Remember, he has an absolute right to resist an unlawful arrest, but the police have the power to use whatever force is necessary to serve the warrant and to make a lawful arrest.
NOTE: Citizens have rights; governments and their agents have powers.
Under normal circumstances, the only rational and safe thing to do is to cooperate fully with the police. Once they’ve identified themselves and produced a warrant, the law is on their side. Resistance will only get Smith hurt and will look bad in court. If the affidavit was faulty, the warrant too will be faulty, but few citizens know enough about the law–and about local warrant forms–to know these things, and at least some–perhaps most–of the officers involved may not know this and may be acting in good faith.
Smith would be wise to call his lawyer and seek his advice, even his presence. No professional police officer should try to stop Smith from doing this, which does not mean that some officers will not try. If they do, again, Smith should cooperate with them.
What if Smith’s family is home? They too should do what the officers ask. Likely, they’ll all be asked to sit in the living room while an officer watches them as the rest search. The police may demand to search them. They should not threaten, absolutely should not make any fast or hidden movements, and should do nothing that might be interpreted in any way as trying to hide or destroy evidence or threatening the officers. The police absolutely will use anything one says against them, and are probably recording.
And if the police decide to arrest Smith? Again, the only safe, rational thing to do is to cooperate. Make no threats, give the police no excuse to use force. Once they have made an arrest, they will use force, brutally and immediately, against the slightest sign of resistance. The time to fight back is later, in court. That will cost tens of thousands of dollars, and may do irreparable damage to one’s reputation and career, but it’s better to be alive to fight than dead and virtuous.
And what happens if Investigator Jones–or more likely his superiors–decides that publicity and politics demand SWAT callouts? What happens when multiple heavily armed and armored men in military garb storm Smith’s home and break in the front door?
Hopefully, every Connecticut gun owner, particularly any that own any firearm or accessory that might be legislated illegal, or which anyone might mistake for such Legislature-declared contraband, should have a family plan for just such a raid.
Under normal circumstances resistance may result in death. If we assume the SWAT team is acting in good faith–and this is possible–they believe dangerous weapons are present and they are expecting violent resistance. When SWAT has arrived, everyone in range is in deadly danger. Anyone home can expect to be handled roughly, even brutally. They can expect to find themselves face down on the floor with a boot on their neck. They can expect they will be handcuffed, and that no attempt will be made to make them comfortable or to preserve their dignity regardless of how they are dressed. Even so, everyone must immediately submit to the police. They must keep their hands in sight and immobile when confronted, and must do as they are told.
If this day arrives, one must fight the constitutional battle elsewhere and at a later time. The only battle that matters is immediate survival for oneself and one’s family. Publicity, public outrage, righteous indignation in front of TV cameras, and vindication in court are months, perhaps years in the future. If one is smart, no unconstitutionally declared contraband will be present, and the raid will be a bust. The only people looking bad will be the police, and if they are honest, the worst injury anyone will likely suffer–apart from bruised dignity–is ligature marks on the wrists from handcuffs. They tend to go away relatively quickly. If the police do damage to one’s home in the process of drilling a dry hole–criminally speaking–damage will also be inflicted on their reputation and the reputations of those that sent them.
The raid may well be an illegal search and seizure, any arrests may well be illegal arrests, but the law is on the side of the police, and one must survive to later press–and enjoy the fruits of–the case for illegal actions on their part. Keep in mind that most citizens do not know enough of the law to know if the police are acting illegally. In addition, they don’t know what the police know. The police may be acting on bad information in good faith. They will assume that anyone–of any age–resisting them is dangerous and means them harm, and they will act accordingly. In many cases, SWAT teams are very much like guided missiles. They go where they are programmed to go and do what they are programmed to do. They need not know every specific fact or bit of evidence to function, and virtually never do. This is true in Connecticut and elsewhere.
Swallowing one’s dignity is hard in these situations, but under the normal rule of law, under normal circumstances, the citizen’s battlefield is the courtroom, not the street, which belongs to the police. There, the full force of the law is virtually always on their side.
I hope this series has been useful. Far too many people derive their understanding of the police based on TV and the movies. Few sources could be more misleading. Producers don’t necessarily try to deceive, but they do try to tell interesting stories in exciting ways. The life of the average policeman is generally far more routine and sedate. Most truly do not seek to violate the law, violate citizen’s rights, violate the Constitution, or unilaterally rewrite the social contract…but some do.
Ultimately, we have exactly the police–and politicians–we deserve. If we don’t care enough to properly vet candidates for elective office, if we listen uncritically to the legacy media, if we do not know the Constitution and honor it, if we do not let politicians know our sincere and very serious thoughts on a regular and convincing–and voluminous–basis, we end up with politicians and police officers like some in Connecticut–and elsewhere.
We can clean house, but it takes constant vigilance, as Thomas Jefferson said was the price of liberty. It also takes real work and working together. In some places, corruption is so entrenched that real change may be impossible in the short term. In those places–and Connecticut may be one–there may be no solution but moving to a state that respects the Constitution and the rights of the individual. At least now you have a better understanding of what you are up against.
The rest, gentle readers, is up to you.