The Rights of the People (24 page)

They asked about the girlfriend but couldn’t get the last name from her. They asked who had access to the locked front bedroom. She alone, Wendy said. Then, when they told her that they’d found money and a gun in there, she speculated that maybe somebody else could have entered by undoing the chain. But the room had been locked with a key, not a chain. Where did the girlfriend sleep? In the front bedroom with her, Wendy said, not with her son.

The cops were incredulous. A thirty-year-old son who doesn’t sleep
with his girlfriend? “I don’t allow that kind of thing in my house,” Wendy said indignantly. The cops didn’t laugh.

“You think your son is man enough to step up and own the guns so his mama don’t get locked up?” asked Quigley.

“Don’t know. Kids nowadays,” she answered.

“I’m trying not to lock you up.”

“You’re treating me like I’m a terrible person,” Wendy said. “I get up early in the morning, go to work, come home.”

“The government could take your house,” Quigley warned, and gave an example of one nearby that had been forfeited as a drug-dealing site.
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“If I lock you up you could lose your job.”

“I haven’t seen anything illegal,” Wendy declared. “You all did the investigation, you should know I haven’t done anything. You should know who the players are.… Somebody should come tell the parent that something’s going on.”

Technically, while Wendy wasn’t free to walk around inside her house, she may have been free to walk out of it entirely, so she may not have been in detention, meaning that she may not have been entitled to the Miranda warning about her Fifth Amendment right not to answer questions. But it was a close call, as Brennan conceded later, and one a defense attorney would have made an issue had she incriminated herself by admitting to owning one of the guns. But she did not, and Brennan felt the ownership was too ambiguous to make a case.

“I might as well kiss my job goodbye,” Wendy said again.

“I just hope these guns are your son’s,” Quigley remarked.

This would have been a different conversation had it occurred three years later, after the Supreme Court decided in 2008 that the Second Amendment protected a right to keep a gun at home for self-defense. Wendy’s possession would have been legal, provided she had registered the firearms and received a license. But even if she hadn’t, the U.S. Attorney’s office wouldn’t have prosecuted, since the guns were inside her house. Although the D.C. Attorney General’s office might still bring criminal charges in such an instance, the Justice Department stopped doing so after
District of Columbia v. Heller
. The department also stopped countersigning search warrants for guns in homes unless connected with drugs or owned by classes of people still barred by federal law from possessing firearms, who included convicted felons, illegal immigrants, and the mentally ill.
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Outside the home, though, guns were still prohibited, and police gun squads still operated vigorously.

Inside residences, drugs remained a key target of police searches, and
this one was finished. Quigley was bending over Wendy and explaining the inventory of items seized (the guns, the ammunition, the money, and photographs to be used to identify her son). A copy was left with her.

At 7:20 p.m., one hour and ten minutes after their arrival, the horde of cops trooped out, leaving mattresses upturned, closet contents heaped on floors, stuff from boxes scattered about, and perhaps a hard lesson imprinted on a mother’s life.

As Brennan walked through the doors, left unlockable in a dangerous neighborhood, he teased Quigley about another search, when she had forgotten to look behind the front door and nearly missed a kilo of cocaine. She laughed and checked a bag behind this door. Nothing incriminating.

Without an arrest, the search had yielded only guns and ammunition, no criminals, illustrating the discretion that officers see themselves applying every day to the uncertainties of these neighborhoods. Back in the car, Brennan turned around to me. “People don’t realize that the benefit of the doubt is given out here on the street.”

The reason, sneered an officer in the passenger seat, was that if a case is to be filed, “the U.S. Attorneys want it on a pillow on a nice little china plate.”

Such perfection is not always demanded by judges, however, when they examine applications for search warrants they authorize. The forms often contain sleazy sources of dubious tips that police cite in asserting probable cause to believe that criminal evidence can be found in one house or another. The netherworld of snitches, though not a pretty place, is essential to police work, and it provides constitutional legitimacy.

After the search at Wendy’s, on the way back to the Narcotics Branch, Brennan went trolling for informants. He swung into an alley behind deserted buildings that stood like broken derelicts near the railroad yards. He squeezed the patrol car around a sharp bend and pointed to a vacant space, cupped between buildings, where he had seen addicts hang out. Now it contained only shadows, but down at the end of the alley, a young black man in a white T-shirt was walking away.

Brennan and his partner got out and shouted at him, “Come here!” He didn’t have to stop, of course, and he didn’t have to do what he did—turn around and come ambling back toward the cops. They couldn’t seize him, because no probable cause existed to believe that he had committed a crime. In the deepening dusk of a back alley near the railroad tracks, however, the Constitution seemed like a faded idea.

The young man muttered that he was just taking a piss. They asked
for his ID. “I ain’t got no ID. Somebody took my wallet.” They asked his name, he gave one, and they asked if that was his real name. Let’s call him Vincent Franklin. Brennan’s partner went back to the car’s computer and ran it through WALES. No criminal record.

While they had him leaning his hands on the hood of the patrol car, Brennan asked him, “Do you use drugs?”

“Yeah, man. Crack. I’m trying to get off it.”

“Where do you get the money for it?”

“Panhandling—one hundred to two hundred dollars a day.”

“Did you ever work with the police?” Franklin shook his head. “We need people to go make a buy,” Brennan explained. “Then we get a search warrant, and you get paid. A lot of people don’t like to do that. They think it’s being a snitch. But a lot like it. You get two hundred dollars for a gun, one hundred dollars per person arrested.”

Franklin froze in stony silence and looked down at the hood of the car. He did not seem to be thinking, Wow! This is the opportunity of a lifetime!

“In the warrant your name isn’t used,” Brennan continued in the most reassuring voice he could muster. “You’re referred to as ‘it.’ ‘ “It” went into the house. “It” bought the drugs.’ You don’t go to court, you don’t testify.” The man’s face had become a mask without a flicker of interest.

Brennan tried to push another button. “You get these motherfuckers who are selling this crap off the street.” I wondered to myself whether Franklin was thinking, But these motherfuckers are my lifeline to pleasure and escape!

“You know something about a shooting,” Brennan went on, “we get the guy, you might make twenty-five thousand dollars. There are twenty-five-thousand-dollar rewards.” He wasn’t getting anywhere with Franklin. “Look, I gotta ask,” he said.

A luxury Acela train from New York eased along the tracks toward Union Station, carrying people down from a day of business or in for high-powered work in the nation’s capital, passengers oblivious to what they were seeing as they looked out their windows at the tiny figures in the shadows.

Now Franklin was slumping like a frightened dog. He hadn’t spoken a word since the offer was made. “You’re not gonna turn yourself around unless you do something about it,” Brennan said. Hearing no answer, Brennan told him that the branch was just down the street, on Third, and that he could stop by anytime. We got into the car and picked our way slowly out of the alley.

Sometimes, Brennan told me, such a man turns up a couple of weeks afterward at the unmarked, light gray one-story building that houses the Narcotics Branch. “After they do a couple of cases with us, they like it,” he said, adding that he protects them when they make buys, with as many backup cops as an undercover officer receives. A C.I. got beaten up recently in the Fifth District, Brennan said, but one of his had never been killed.

In practice, then, “the right of the people to be secure in their persons, houses, papers, and effects” can be overcome by the anonymous assertions of a questionable character who is motivated by cash from the police or leniency from the prosecutor. On the basis of a furtive phone call about a gun someone has supposedly seen or a bag of crack he’s bought, a home can be invaded. The officer signs a sworn affidavit reporting the tip, which is often hearsay, thereby establishing probable cause, and a judge issues the search warrant. As far as is known, judges seldom refuse, although statistics on rejections are not collected.

Ironically, this thin justification for turning someone’s house inside out is actually the gold standard of constitutional protection under the Fourth Amendment. The search warrant is the strictest procedure that we possess to preserve that right, and so it is hailed by outspoken defenders of civil liberties as a bastion against the groping hands of the state. As flawed as it has become, it remains the model, the benchmark for measuring deviations. Searches that are done without it—of pedestrians and vehicles openly, of computer files and library records secretly, of e-mail and phone and bedroom conversations among suspected terrorists—are dangerous departures from the paradigm, the imperfect paradigm.

The warrant requirement has a noble history as a rebuff to the British writs of assistance, which allowed whole villages to be searched for contraband in Colonial times. “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle,” argued James Otis on behalf of Boston merchants in 1761. “This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.”
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The answer, in the Fourth Amendment, provides for the checks and balances that limit governmental power: The warrant is requested by the executive and issued by the judicial branch. It requires a threshold of
evidence that is designed to prevent fishing expeditions and harassment. And unlike the British writs of assistance, it is limited by specificity as to time, place, and items of evidence sought.

These characteristics create obstacles to outright police fabrication, although it sometimes happens. A single officer cannot easily invent probable cause, as he can during a traffic stop. At least a measure of proof is required, not beyond the reasonable doubt that must be exceeded for a jury to convict, but enough to ensure that the search occurs after, not before, some investigation has begun. A logical progression is thereby prescribed: Only as the facts grow more certain may the inquiry grow more intrusive—and more regulated.

Furthermore, the accused ultimately has the right to challenge the basis of the warrant in court, which cannot happen when information is obtained secretly through methods expanded since September 11, 2001. These methods include the administrative subpoena known as a National Security Letter and the clandestine warrant issued by the Foreign Intelligence Surveillance Court. Both devices were broadened by the Patriot Act.

Finally, the warrant alerts police to the potential of a challenge, which makes them careful, as Brennan’s squad demonstrated.

Before going out on another search, the unit’s dozen officers, all dressed down in casual civilian clothes, gathered in the conference room at the Narcotics Branch. The policeman with the long ponytail described the location: 1914 I Street NE, Apartment 3—marked by a white door bearing the number 3—where a black male had reputedly sold a C.I. ten zips, as the small ziplock bags used to package drugs are called. “He is heavily watching out the window. Once the back-door containment is in place, we’ll go in the front. The back door is the fourth from the alley, but unmarked. A huge tree covers the steps with overgrowth.” The squad was shown pictures of the area.

The front door was “a lockout,” he said, meaning that a key or a code was needed to get into the building. This was a complication, because the cops didn’t want to bust down the outside door and give the occupant enough warning to flush the drugs or grab a gun. “Could we go in the back?” one asked, and a few others picked up on the idea, because the back door led directly to the apartment. But Ponytail was hesitant because the door had no number, and bursting into the wrong place would ruin everyone’s day.

Brennan drew a diagram and gave the assignments, and we set off in three cars, one unmarked, with everyone except me wearing dark blue
bulletproof vests emblazoned with white letters spelling
POLICE
. Brennan wore a blue shirt with a Narcotics Division logo; his badge hung on a string around his neck.

We drove into a parking lot a few blocks away and waited out a fierce thunderstorm. Quigley was not with us. She was undercover in the neighborhood, hoping to get into the building’s vestibule so that the cops could avoid using the battering ram. She waited on the stoop until somebody came out, then slipped through the open door and radioed to Brennan that she was inside.

The squad drove up, the cops jumped out and rushed the building, jamming into the narrow hallway and up the stairs to the apartment on the left, on the second floor.

There they stopped cold. The numeral nailed to the apartment door was 2, not 3. Even though a uniformed officer had confirmed the number as 3 a few days earlier, drug dealers sometimes switch digits to foil cops. And here it worked, because the warrant said number 3, and Brennan and the others knew this was just the kind of detail that a good defense attorney could use to have the search declared illegal and its fruits excluded.