Rise of the Warrior Cop (32 page)

Forty-three-year-old Richard Elsass was sleeping in a trailer outside the Ripon, California, truck stop where he worked when on the morning of October 20, 1989, black-clad SWAT teams from San Joaquin and Stanislaus Counties swarmed the building as part of a predawn drug raid. According to police, they knocked and announced themselves several times, after which Elsass said, “Wait a minute.” When he didn’t answer the door, Sgt. Deighton Little of the San Joaquin County Sheriff’s Department went around to the back and smashed a window with his flashlight. When Little looked inside, Elsass shot him, killing him. The other officers then opened fire into the trailer, killing Elsass.

Friends and coworkers said Elsass was both a heavy sleeper and hard of hearing. They also told local media that he had mentioned having some safety concerns about some of the people and activity near the truck stop. The police found no drugs in Elsass’s trailer, nor any evidence linking him to a drug crime. Officials from both police departments promised a full and impartial investigation, even as they assured the public that their officers had followed all the proper procedures
and done nothing wrong. Not surprisingly, the subsequent internal reviews at both departments cleared all of the raiding. The police conducted a violent, volatile drug raid on the home of an innocent man, killed him, and got one of their own killed in the process. Yet by their own measure, they followed all the proper procedures, and nothing about those procedures needed to be changed. The inescapable conclusion: raiding and killing innocent people is an acceptable outcome of drug policing. In 1994 a jury found the officers negligent and awarded Elsass’s family $175,000 in damages.
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U
NDER THE
O
PEN
F
IELDS
D
OCTRINE, THE SUPREME
C
OURT
had already given its approval to law enforcement officers trespassing on private property without a warrant to search for criminal activity, even when they had to scale fences, open gates, and ignore NO T
RESPASSING
signs to do so. The Court then broadened the doctrine to include aerial inspections and photographs from fixed-wing aircraft from one thousand feet or higher. In 1989 the Court capped a rather ignoble decade of drug war decisions with a gobsmacker: the Court gave its approval for police to hover in helicopters at low altitudes in order to see behind the walls of structures built on the private property of private citizens. All without a warrant. In 1988 a law enforcement officer in Florida got a tip that marijuana was being grown in a private greenhouse. When the investigating deputy was unable to see into the greenhouse on foot, he used a police helicopter to fly over the property. After lowering the helicopter to just four hundred feet from the ground, the deputy was able to peer into an open roof panel and spot some marijuana plants. In January 1989, by a 5–4 vote, the Supreme Court ruled that the deputy’s actions did not constitute a “search” under the Fourth Amendment, and therefore did not require a warrant.
⁵³
The plurality opinion focused mainly on whether Federal Aviation Administration (FAA) regulations permitted a helicopter to fly that low. Justice Sandra Day O’Connor wrote a concurring opinion arguing that the standard
shouldn’t be FAA regulations, but whether it was common for aircraft to fly that low. If it was uncommon, then the defendant would have a reasonable expectation of privacy. But because the defendant didn’t argue the point, O’Connor provided the deciding vote for the majority.

Florida v. Riley
was one of the last cases that William Brennan would hear. His dissent reads like a man with outrage fatigue. “The plurality undertakes no inquiry into whether low-level helicopter surveillance by the police activities in an enclosed backyard is consistent with the ‘aims of a free and open society,’” Brennan wrote. He then returned to a running theme in his dissents in such cases—that the Court was creating a drug war exception to the Fourth Amendment. He noted that the plurality opinion suggested that the Court might have viewed the case differently if the officer had seen “intimate details” from the helicopter. “Where in the Fourth Amendment . . . [is there] a requirement that the activity observed must be ‘intimate’ in order to be protected by the Constitution?” Brennan wrote. “If the Constitution does not protect Riley’s marijuana garden against such surveillance, it is hard to see how it will prohibit the government from aerial spying on the activities of a law-abiding citizen on her fully-enclosed outdoor patio.” Brennan then quoted from a law review article by Fourth Amendment scholar Anthony Amsterdam: “The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.” Fittingly, Brennan closed with a passage from George Orwell’s
1984:
“In the far distance, a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people’s windows.”
⁵⁴

The Court’s last real civil libertarian retired a month later.

The Numbers

Number of drug raids conducted in 1987 by the San Diego Police Department: 457

Number of drug raids conducted by the Seattle Police Department in 1987: approximately 500

Value of the assets in the Justice Department’s forfeiture fund in 1985: $27 million

Value of the assets in the Justice Department’s forfeiture fund by 1991: $644 million

Percentage of US cities with populations over 50,000 that had a SWAT team in 1982: 59 percent

. . . in 1989: 78 percent

. . . in 1995: 89 percent

Percentage of those SWAT teams that trained with active-duty military personnel: 46 percent

Average annual number of times each of those SWAT teams was deployed in 1983: 13