Rise of the Warrior Cop (34 page)

One of the regions included the San Diego area. About three years into the program, forty-one-year-old Fortune 500 executive Donald Carlson awoke at around midnight to a pounding at his front door. He asked several times who was there. No one answered. Carlson became frightened. He walked back to his bedroom in the pitch dark to retrieve his gun, while nervously fumbling with a cordless phone as he attempted to call the police.

Carlson then heard the glass window in his den shatter. That was followed by what he’d later describe as “a thunderous explosion.” Someone then yelled, “He’s got a gun!” Now terrified, Carlson fired at the door, hoping to scare the intruders away. Instead, they fired back. The first bullet flayed his upper thigh, severing his femoral artery. Carlson discarded the gun. He had just made it back to his bedroom when he dropped to the floor. He’d been hit by two more bullets.

Carlson looked up and saw figures staring down at him, darkened behind the flashlights they were pointing in his face. One of them screamed at him, “Don’t move, motherfucker, or I’ll shoot!”

But the pain in Carlson’s arm began to overcome his adrenaline, so he attempted to adjust it. Again: “Don’t move, motherfucker, or I’ll shoot!” The men then rolled him over and handcuffed him. None of them attempted to give him medical attention. They left him to bleed in his own bedroom until paramedics arrived a half-hour later. Carlson later said that on the way to the hospital, he prayed for God to let him die.

Fortunately, Carlson survived. What happened to him was a direct consequence of President Bush’s new drug policy. The DEA and Customs had always had a bitter rivalry, going back to the Nixon years. Bush’s 1990 border plan had shifted a great deal of the federal government’s antidrug strategy toward the border, putting Customs in charge. That angered the careerists at the DEA, and only
intensified the rivalry between the two agencies. Because they were competing for the same pot of money, pressure mounted for agents to make big busts, skim over constitutional protections, and play fast and loose with procedure.

“The Carlson shooting is an example of how competition between federal law enforcement works to the detriment of the public,” one federal agent later told the
San Diego Union-Tribune
. A local judge agreed. “There’s no question that when you have turf wars between law enforcement agencies, you’re going to have potential for disaster.” The Carlson raid was part of Operation Alliance, which itself was part of a border interdiction effort in which Customs and the DEA were supposed to have been working together. Subsequent reports would show that the project only inflamed tensions. Customs officials were so eager to make a big bust that they had neglected to investigate the informant whose tip was their sole source of information for the raid. If they had done so, they’d have discovered that he had a history of lying. According to the
Union-Tribune
, the DEA had been paying him $2,000 a month to work as an informant but had dropped him two weeks prior to the Carlson raid because he was unreliable. According to one agent, “When a DEA agent says, ‘This guy is no good,’ the first thing a Customs agent wants to do is prove the DEA wrong.” Odder still, because the two agencies were supposed to be working together, there were actually DEA agents who participated in the Carlson raid, which was based on a tip from the informant the DEA had just let go for being untrustworthy.

The police found no drugs or any evidence of any criminal activity in Carlson’s home. They had also raided another home on the same night, based on information from the same informant. That raid didn’t turn up any contraband either. Nevertheless, Carlson spent the first several days of his convalescence shackled to his bed with an armed guard outside his room. By the time he testified before Congress the following June, he had been cleared of any wrongdoing. But the government still refused to give him the names of the agents who raided his home and who worked on the investigation.
No one from the government had contacted him about taking care of his medical bills, which by then had topped $350,000, or covering the costs of repairing his house. No one had even bothered to apologize. And no agents had been disciplined or reprimanded, much less criminally charged. Only the informant had been charged, and those charges were later dismissed. Carlson and his attorney were told that neither Customs, nor the DEA, nor any of the local police agencies involved in the raid saw any reason to change their procedures as a result of what happened.

In its report on the bureaucratic bumbling that led to the Carlson raid, the
Union-Tribune
found evidence of other mistaken raids wrought by the same misplaced incentives. Midlevel managers and federal law enforcement agencies faced constant pressure to keep their statistics: “Impressive seizures allow these managers of the drug wars to ask for, and receive, larger staffs—and higher pay.” So long as performance was measured with raw seizure and arrest figures, drug agents told the paper, mistaken raids would remain “a fact of life in drug work.” Added a San Diego–era narcotics cop, “Every narc, at one time or another, has hit a wrong door.”

In December 1994, Carlson accepted a $2.75 million settlement from the federal government. He never got an apology.
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P
ROPONENTS OF NO-KNOCK RAIDS AND FORCED-ENTRY RAIDS HAD
always argued that scrutiny from judges and prosecutors would keep abuses and excesses in check. Yet the police officers interviewed for this book unanimously told me that beginning in about the mid-1980s, judges almost never denied their requests for a search warrant. Some judges asked questions now and then, but even then they rarely denied a warrant. As the sheer volume of drug cases picked up in the late 1980s and into the 1990s, many judges stopped asking questions too. A few officers said that they had known that some judges looked more closely at affidavits for no-knock warrants, but added that knock-and-announce requests were never a problem, even when everyone knew the warrant would be served with a dynamic entry.

In 1992 University of Minnesota law professor Myron Orfield sent a questionnaire to Chicago judges, prosecutors, and defense attorneys to determine the state of the Fourth Amendment in that city. Even cynics would find the results dispiriting. More than one-fifth of Chicago judges believed that police lie in court more than half the time when questioned about searches and seizures.
Ninety-two percent
of judges said that police lie “at least some of the time,” and 38 percent of judges said that they believed that police superiors encourage subordinates to lie in court. More than 50 percent of respondents believed that at least “half of the time” the prosecutor “knows or has reason to know” that police fabricate evidence. Another 93 percent of respondents (including 89 percent of the prosecutors) reported that prosecutors have knowledge of perjury “at least some of the time.” Sixty-one percent of respondents, including half of the surveyed prosecutors, believed that prosecutors know or have reason to know that police fabricate evidence in case reports, and half of prosecutors believed the same to be true when it comes to warrants. Prosecutors also described the unspoken understandings they often shared with cops, including prosecutors articulating cases to police in terms like, “If this happens, we win. If that happens, we lose.” Yet Chicago judges went on approving search warrants with little to no scrutiny. Orfield asked one more question. Did the Exclusionary Rule really deter police misconduct? Every judge, every defense attorney, and every prosecutor but one answered yes.
¹²

Former narcotics cop Russ Jones says it wasn’t always like that. “When I first started writing search warrants, I had to take it to the DA, who would thoroughly review it. Then I’d take it to the judge, who’d also give it a close look. Then the judge always read the warrant, always asked questions. By the time I left law enforcement, and certainly since, it had gotten to the point where 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. And I understand it’s happening more and more.”
¹³

In many jurisdictions, search warrants can be approved by magistrates who needn’t even have any legal training. A 1984 study of the
warrant process in seven US cities by the National Center for State Courts found that magistrates spend an average of two minutes and forty-eight seconds reviewing warrant affidavits before (almost always) approving the warrant. The study also found evidence that police “magistrate shop”—they seek out magistrates with a reputation for approving warrants quickly and with no hassles, and avoid those who ask questions. In one city, a single magistrate approved 54 percent of the search warrants over the period the study was conducted. The most popular magistrate in another city had rejected just one search warrant in fifteen years on the bench. Not surprisingly, “most police officers interviewed could not remember having a search warrant turned down.”
¹⁴

After the botched raid that ended the life of Ismael Mena in 1999, the
Denver Post
looked into how judges in the Mile High City handled requests for no-knock warrants. Again, the results were unsettling. Over a twelve-month period, police in Denver requested 163 no-knock warrants. The city’s judges granted 158 of them. Defense attorneys told the paper they were surprised to learn that the judges had rejected even five. Perhaps Denver police had come to the judges with more than adequate probable cause? Perhaps. But the paper also found that, astonishingly, many of the city’s judges would sign off on no-knock warrants
even though the police hadn’t requested one
. In fact, about 10 percent of the no-knock warrants were changed from knock-and-announce warrants merely by the judge’s signature—the police hadn’t presented any additional information establishing exigent circumstances. The paper also found that in eight of ten raids over that period, police assertions in affidavits that they would find weapons during the search turned out to be wrong. In only seven of the 163 no-knock affidavits did police present any evidence that the suspect had been seen with a gun. Of those seven raids, just two turned up an actual weapon. The Denver Police Department requires that all no-knock raids be preapproved by the DA’s office. In about one-third of the raids, that never happened. And nearly all the no-knock warrants were granted on little more than a police officer’s assertion that a confidential informant had told him the suspect was
armed or likely to dispose of drug evidence, with no additional corroborating information.

When confronted with the results of the investigation, the presiding judge over Denver’s criminal court system wasn’t particularly reassuring. “We are not fact gatherers,” Judge Robert Patterson said. “It’s pretty formulaic how it’s done.” On how a judge could possibly inadvertently approve a no-knock warrant when the police hadn’t even asked for one, Patterson said, “If you sign your name 100 times, you can look away and sign in the wrong place. We read a lot of documents. We may, just like anyone else, sign something and realize later that it’s the wrong place or the wrong thing. Is it wrong not to be paying attention? No. It’s just that we’re doing things over and over again.”
¹⁵

Hearing Patterson’s explanation, you’d think he was talking about the elementary school teacher who might occasionally mis-grade one of dozens of homework assignments. This was about giving armed law enforcement officers permission to break into homes in the middle of the night, detonate flash-bang grenades, and point their guns at Denver citizens. Patterson, astonishingly, was calmly explaining how the city’s judges couldn’t even be bothered to pay attention to where they signed their names.

Judges and prosecutors weren’t just neglecting their responsibility to protect the Fourth Amendment. They were nearly conspiring against it.

T
HE EARLY
1990
S WEREN’T KIND TO THE FATHER OF
SWAT. In response to the Rodney King beating of May 1991, Los Angeles mayor Tom Bradley asked Warren Christopher to chair a commission looking into the LAPD’s use of excessive force. The commission’s report was damning. It found that a small but significant group of police officers within the department regularly used excessive force—and that LAPD leadership did little to stop them. Between 1986 and 1990, the city had faced eighty-three lawsuits that resulted in settlements of awards of over $15,000. The commission
found that even though officer misconduct in those cases had often been egregious, it had usually resulted in “light and often nonexistent” discipline. The commission reviewed radio transmissions of LAPD officers referring to a drug roundup in a black neighborhood as “monkey slapping time” or fantasizing about driving down one particular street with a flamethrower—“We would have a barbecue.”