Recent U.S. Supreme Court Decisions Expanding “No Knock” Powers of the Police and Insulating Law Enforcement Abuses Allow a Growing Police State
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We are no fans of “no knock” searches by the police, especially those launched by militarized SWAT units. We made this clear after a recent U.S. Supreme Court decision expanding police powers to conduct such searches (here). We don’t like them because they kill innocent people indiscriminately. We have permitted our law enforcement agencies to become so militarized that “no knock” searches increased from 3,000 in 1981 to 50,000 in 2005, according to Eastern University of Kentucky criminologist Paul Kraska, and have resulted in the deaths of 40 innocent people during that time, according to the Washington-based Cato Institute. Peter Guither, with Drug War Rant, places the number of innocents killed in “no knock” searches at 42.
One of those innocent people gunned down by the police was 44-year-old substitute Sunday school teacher Cheryl Noel who kept a registered gun in her bedroom. Nine years earlier her 16-year-old stepdaughter had been killed in a shooting which led Noel to purchase a weapon for self-protection. On June 2, 2011 the Fourth Circuit Court of Appeals, in Noel v. Arston, rejected claims by her estate that they were entitled to civil damages under 42 U.S.C. Sec. 1983.
The Noel tragedy began in October 2004 when a Baltimore County police officer noticed a white dusty power inside a bag in Matthew Noel’s vehicle during a routine traffic stop. The 18-year-old Noel lived at home with his parents Cheryl and Charles. He admitted to the traffic stop officer that he had a “Percocet abuse problem.” The traffic stop officer passed this information on to the Baltimore County narcotics department. Sgt. Robert Gibbons initiated a surveillance of the Noel residence, examining the trash thrown away by its occupants each day. Why law enforcement officials decided to conduct such an intensive investigation based on nothing more than white dust powder in a vehicle driven by an 18-year old who admitted to having a drug abuse problem has never been made clear in the public record.
What is clear is that Gibbons found marijuana and other drug paraphernalia in the trash which was sufficient for him to apply for and secure a search warrant of the Noel residence on January 19, 2005—some three months after the traffic stop discovery of the white dust powder. Gibbons then discussed the search with Baltimore County SWAT supervisors who decided that a “no knock” entry was appropriate.
We cannot fathom why marijuana and drug paraphernalia found in the Noel’s trash warranted a “no knock” search by a SWAT team. All the police had was an 18-year-old kid with a Percocet drug abuse problem and some marijuana found in the trash. These are not indicators of a major narcotics ring operating out of the residence that would react violently if served with a routine search warrant during the light of day. SWAT supervisors justified the “no knock” entry based on the following three reasons as articulated by the Fourth Circuit: 1) Charles Noel had a thirty year old second degree murder conviction; 2) in December 2004 Matthew Noel had been charged with attempted second-degree murder in connection with shooting a man in the foot at a convenience store, even though the charge had been reduced to first degree assault; and 3) there were guns registered to Cheryl Noel and her other son Jacob at the residence.
These three factors notwithstanding, we still find it difficult to accept that a “no knock” entry was justified. There was no evidence that Charles Noel had engaged in any kind of violence since his three decades old second degree murder conviction; or that Matthew Noel had a history of violence outside shooting a person in the foot; or that either Cheryl or Jacob Noel had any criminal history. One thing is certain: not one person living in the Noel residence had ever demonstrated any violence toward the police. As a matter of fact, Matthew Noel had been cooperative with the police during the October 2004 traffic stop in which he admitted to having a substance abuse problem.
Clearly, from our point of view, there was nothing to justify 15 SWAT team officers at 4:30 a.m. going to the Noel residence on January 21, 2005 and breaching the front door with a “battering ram” followed by the use of a “flash grenade” outside the residence “to distract the occupants momentarily.” The SWAT team supervisors stated that one of the officers announced “Police – Search Warrant” as soon as they entered the residence, and continued with that announcement until officers reached the bedroom of Cheryl and Charles. Charles Noel and his neighbors would later testify that they heard the grenade explosion but no police announcements about a search warrant.
Less than five seconds after the SWAT team entered the Noel residence Officer Carlos Arston rushed into the bedroom where, according to Arston, Cheryl was “spinning toward him holding a revolver.” Officer Artson fired two shots, one of which struck Cheryl in the right breast and the other in her left shoulder. She slumped to the floor near the foot of the bed.
Then, according to Officer Artson, he ordered Cheryl several times to drop the gun and she released it “only eight inches from her right arm.” All the witnesses agreed, including Charles, that Artson told Cheryl to move her hand away from the gun, but Charles vigorously disputed Artson’s assertion that Cheryl “looked like she’s trying to make a choice, make a decision” before she moved her hand back toward the gun at which time the officer shot her in the chest, killing her. A coroner testified that Cheryl could have survived the first two wounds but not the third because the bullet “pierced her heart.”
Cheryl Noel’s estate brought a civil rights lawsuit against Artson and the other SWAT team officers claiming they had violated Cheryl’s Fourth Amendment rights by 1) failing to knock and announce their presence; 2) executing the search warrant unreasonably; and 3) using excessive force. A nine-day jury trial resulted in a “not guilty” verdict against the officers. The central issue on appeal centered on the district court’s charge to the jury. Attorneys for the Noel estate argued that the third shot fired by Officer Artson was unreasonable; that the district court committed reversible error by not giving the following charge relative to the reasonableness of Artson’s third shot:
“Even if you decide that the initial use of force was reasonable … you must also consider whether the third shot was reasonable use of force. The force used at the beginning of the encounter may not be justified even seconds later if the justification for the initial use of force has abated.”
We agree that the charge was essential to the Noel estate’s argument that the third shot was unreasonable; that it was “excessive force.” Officer Artson had shot Cheryl twice—once in the breast and again in the shoulder. She had slumped to the floor and heeded the officer’s demand to drop the weapon. She was seriously wounded at that point. All Officer Artson had to do was quickly move in and kick the gun out of Cheryl’s reach. But the officer would have us to believe that after Cheryl heeded his order to drop the weapon, she looked like she was trying to make a decision about whether to pick the weapon back up. We don’t believe that.
When Artson and other SWAT team officers rushed into the Noel bedroom, the couple did not know who they were or what their intent was. Cheryl armed herself for self-protection, but after Artson shot her twice, it can reasonably be assumed she understood then that Artson was a cop. It defies logic that after she heeded the officer’s instruction to drop the weapon that she would reach for it again, especially after having already been shot twice and facing Artson’s automatic weapon pointed directly at her.
While central and collateral facts of this case were in serious dispute, the one fact not in dispute was Officer Artson’s decision to fire the fatal shot into Cheryl’s chest. The only basis he had for firing that fatal shot was his assertion that Cheryl “looked like” she was trying to make a decision about whether to pick up the weapon and continue the confrontation. First, as we have stated, we do not believe a “no knock” entry by a SWAT team was justified; and, second, there is no way we can accept that Officer Artson was justified in firing that third, and fatal, shot into Cheryl’s chest. The failure of the trial court to give the third shot instruction requested by Cheryl’s attorneys allowed the jury to decide the case solely on the initial confrontation when Artson entered the bedroom and encountered an armed Cheryl when, in fact, the entire case for excessive force centered on the third and fatal shot.
The Cheryl Noel tragedy is not an isolated incident. In 2006 members of the Atlanta police department planted marijuana on Fabian Sheats, a suspected street dealer. They told the Sheats they would let him go if he “gave them something.” The dealer told them he had saw a kilogram of cocaine in a nearby residence, providing the police with the address of “the elderly spinster Kathryn Johnston” who had never used or sold drugs and who, in fact, lived in terror of break-ins in her “crime-infested neighborhood.”
Armed with the information supplied by the drug dealer, the police then lied to a judge claiming they had purchased drugs at the Johnston residence in order to secure a “no knock” warrant. They then used a battering ram to knock down Johnston’s reinforced metal door. All Ms. Johnston knew was that unknown people were breaking into her residence. She naturally fired a bullet into the roof of her porch which injured no one. The police responded with 39 rounds from their automatic weapons, striking Ms. Johnston five times and wounding fellow members of the assault team with five rounds. The police would lie again, saying that Ms. Johnston had fired the five shots that wounded the officers.
As Ms. Johnston lay mortally wounded in a pool of blood on the floor, the police handcuffed her and then searched her residence, and upon finding no drugs, they planted three bags of marijuana in the residence. The police were not finished. The next day they picked up an informant named Alex White and told him they needed for him to lie, saying he purchased cocaine at Johnston’s house. White refused, broke away from the police, and took the story to the local media. Two of the officers were subsequently indicted and pled guilty to manslaughter, prompting an investigation by the FBI into corruption in the Atlanta police department and forcing Police Chief Richard Pennington to transfer the entire narcotics squad “to other duties.”
A year after the brutal murder of Kathryn Johnson Cato Institute analyst Radley Balko produced a white paper titled “Overkill: The Rise of Paramilitary Police Raids in America.” Balko concluded that “no knock” raids by SWAT teams “terrorize innocents when police mistakenly target the wrong residence. And they have resulted in dozens of needless deaths and injuries, not only of drug offenders, but also of police officers, children, bystanders, and innocents.”
Charles P. Garcia, in a 1993 Columbia Law Review article titled “The Knock and Announce Rule: A New Approach to the Destruction-of-Evidence Exception,” traced the origin of the “no knock” policy to the Nixon administration in 1970 when the president, who had declared the so-called “war on drugs,” instructed his Justice Department to lobby Congress to create a “comprehensive anti-drug strategy” which included a “no knock” search warrant provision. The “no knock” experiment lasted only four years before a legion of “horror stories” were disclosed in the media, including the New York Times, about innocent people being subjected to violent and illegal raids by federal, state and local police which prompted the demise of the experiment.
But President Ronald Reagan’s “war on crime” in the 1980s and the terrorist attacks on the Twin Towers on 9/11 returned the “no knock” strategy as a major tool for law enforcement agencies in both the “war on crime” and “war on terror.” But the “no knock” strategy had an unintended consequences—it created a new crime called “home invasion.” Criminals believed that if the police could kick down doors in search of illegal drugs and money, they could do the same, frequently disguising themselves as “the police” in the process. Residents in both crime-infested urban neighborhoods and middle/upper class suburban neighborhoods soon realized they were the most vulnerable to these “home invasions.” They began to arm themselves, heavily, as they encouraged state legislatures to enact defense of one’s castle with use of deadly force laws, including the State of Texas (here, here, here, and here).
Today there are between 70,000 to 80,000 “no knock” search warrants executed in this country each year. As Radley Balko said in his “Overkill” article: “Police typically serve these warrants just before dawn, or in the hours just before sunrise. They enter the residence unannounced or with very little notice. The subjects of these raids then, are awoken from deep sleep, and their waking thoughts are confronted with the prospect that their homes are being invaded. Their first reaction is almost certainly alarm, fear, and a feeling of peril. Disorienting devices like flashbang grenades only compound the confusion … It isn’t difficult to see why a gun owner’s first instinct upon waking to a raid would be to disregard whatever the intruders may be screaming at him and reach for a weapon to defend himself. This is particularly true of someone with a history of violence or engaged in a criminal enterprise like drug dealing. But it’s also true of a law-abiding homeowner who legally owns guns for the purpose of defending his home and family.”
In fact, on June 10, 2011 the Houston Chronicle reported that 53-year-old Lt. Donald Hamilton with the Houston Police Department shot two of the three men trying to invade his residence as he was getting dressed for work. The natural instinct is to shoot to kill anyone trying to invade your home. That’s what Cheryl Noel and Kathryn Johnston did. These two women died, not resisting arrest but defending their castle as Lt. Hamilton did. As John Whitehead said in his 2003 article “No Knock-Knock”:
“Incidents like these used to outrage people, but they barely make headlines anymore. Unwilling to learn about their rights, the American people have continued to relinquish them to the so-called ‘guardians of the peace.’ So it is somewhat understandable that police officers think they have tacit approval to act in such a way… Yet to paraphrase James Madison, one of the greatest minds in American history, if all men were angels, no government would be necessary. But the fact is all men are not angels. That’s why the founding fathers drafted the Constitution as a contract to hold the government accountable in respecting the rights of the people—and vice versa.”
We could not have said it better. We have continuously warned against the militarization the nation’s law enforcement agencies which have placed us all under a virtual “police state.” The recent U.S. Supreme Court decision expanding the “no knock” powers of the police, and the Fourth Circuit’s decision in the Noel case insulating the police when they abuse the “no knock” powers, are evidence of a growing police state in this country—a state that will eventually erode away the Constitution, the Bill of Rights, and our sacred court system.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization