When the relatively few Americans who care discuss the slow erosion of Fourth Amendment rights, we often focus on how Congress and the courts have weakened the warrant clause by purporting to increase the array of circumstances in which law enforcement can conduct warrantless searches.

But ultimately a warrant is just a piece of paper. When it's issued without meaningful review, or executed in an unreasonable manner, it offers only the appearance of compliance with our Fourth Amendment rights.

Let's look at two examples from this week's news.

You Already Knew That I Was Going To Write About This

There's no kind way to say this: many of the judges and magistrates who sign off on search warrants just suck. They're not the legal varsity, they kowtow to cops, they're too spineless to challenge the adequacy of probable cause, and they don't think about what probable cause means.

That's how you get cops asking for, and getting, search warrants when anonymous psychics tell them that somebody's house is hiding a mass grave of children.

The police in East Texas were led on a fruitless search on Tuesday evening when a woman, claiming to be a psychic, called in a sensational tip, saying she knew of a mass grave where dozens of dismembered bodies were buried.

Equipped with a search warrant and cadaver-sniffing dogs, deputies from the Liberty County Sheriff’s Office converged on a home on a narrow country road near Hardin — about an hour outside Houston — in search of a macabre crime scene. The news of a mass grave in rural Texas set off a news media frenzy: throngs of reporters camped outside the home, two news helicopters circled above, and cable news stations flashed alerts that up to 30 bodies had been found.

But in the end, there was no grave, there were no bodies and there was no sign that any crime had been committed — except, perhaps, the misleading call that created the spectacle in the first place.

Now, an anonymous tip can form part of the basis for probable cause supporting a search warrant — but only if that tip is meaningfully corroborated. Meaningful corroboration doesn't mean corroboration of innocent facts. For instance, if the police get an anonymous tip that I am running a vast marijuana farm in my red house on Oak Street, and they check and I do have a red house on Oak street, that's not corroboration. If the police get the same tip and determine that my electrical bills are $10,000 per month and that I have a greenhouse with the windows covered and that I buy two cases of Doritos per week, that's meaningful corroboration.

The degree of corroboration required varies with the nature of the anonymous tip. Here, an extraordinary anonymous tip — that the tipster knew of a mass grave because of psychic powers — should have required extraordinary corroboration. That's because, while we as a nation hold Jesus and the angels in high esteem, we tend to view their tips with skepticism when routed through 48-year-old Texas grandmothers named "Angel." Since we don't have the warrant affidavit — and, indeed, police may not have prepared a written one — we don't know exactly what corroboration police cited. Though some reports suggest police saw dried blood on a porch (itself inadequate, in my opinion, to corroborate a psychic's tip), others suggest that police relied on the fact that the psychic correctly described innocent details like the location, appearance, and layout of the house.

The point is this: when judges will issue search warrants based on transparent flights of fancy, and when other judges will (1) out of deference to law enforcement, be reluctant to throw out evidence derived from such flights of fancy, and (2) hold cops immune from lawsuits, then the warrant requirement is but a paper shield.

Your Worst Nightmare: An Educator With A Gun

Anton Chekov (no, not the Star Trek guy) said of writing drama, "one must not put a loaded rifle on the stage if no one is thinking of firing it."

Law enforcement training and procurement follows a similar ethos: supply creates its own demand. If you buy fancy toys for cops of any stripe, and train them to use them, then they're going to use them. Once law enforcement is equipped and trained to wield the hammer of paramilitary raids, then every search looks like a nail.

That's how the Department of Education's Office of the Inspector General came to execute a SWAT-style paramilitary raid on a homeowner to find evidence of his estranged wife's student loan fraud. We know that the DOE-OIG wasn't investigating dangerous or violent crimes, because we know what the warrant was for, and because they lack the power to do so — they investigate white-collar fraud crimes involving federal loans and programs. But DOE-OIG had procured Chekov's gun, and it couldn't just sit peacefully on the mantle in the third act. It — and their agent's paramilitary training existed, and had to be used. (I suspect there's a Napoleonic phenomenon going on as well: in my experience as a former fed and current defense lawyer, the more petty an officer's power, and the narrower his patch, the more he itches to exercise force and authority.) That's how they get to the place where they think it's appropriate to use this much force against an innocent citizen with no criminal record, and his family, because his ex was committing fraud:

"They surrounded the house; it was like a task force or S.W.A.T team," across the street neighbor Becky said. "They all had guns. They dragged him out in his boxer shorts, threw him to the ground and handcuffed him." [...]

Her young daughter, Valerie, said she counted 13 agents and one Stockton police officer outside Wright's home.

"I felt really bad for those kids," said Becky about agents when they brought out Wright's three children. "They were crying really loud."

Searches can be unreasonable not just in their purpose or in their supporting probable cause, but in their execution. A paramilitary raid is a grotesquely disproportionate approach to the investigation of a non-violent crime. It poses a grave risk of accidental death. It terrorizes innocents. And it conditions both police and citizens to view any law enforcement inquiry as justifying overwhelming force. Things like loan fraud and illegal milk sales should not require shock and awe.

The bottom line: we need to be vigilant for government abuse of the application for and execution of search warrants as well as erosion of the use of search warrants.

Last 5 posts by Ken

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