Hasty Drug Warriors Are a Menace: Prompted by a Raid That Gravely Injured a Toddler, Georgia Considers Limits on No-Knock Search Warrants

Jacob Sullum
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Posted: Jan 28, 2015 12:01 AM
Hasty Drug Warriors Are a Menace: Prompted by a Raid That Gravely Injured a Toddler, Georgia Considers Limits on No-Knock Search Warrants

The last time the Georgia legislature considered a bill aimed at restricting no-knock search warrants, it was prompted by a 2006 drug raid in which Atlanta police killed Kathryn Johnston, a 92-year-old woman who grabbed a revolver to defend herself against the armed men crashing into her home. This time around, the precipitating event was a 2014 drug raid in which a Habersham County SWAT team burned and mutilated a 19-month-old boy, Bounkham "Bou Bou" Phonesavanh, by tossing a flash-bang grenade into his crib.

Any reform that makes such horrifying incidents less likely is welcome. But the proposed changes deal with just one aspect of the aggressive paramilitary tactics that needlessly endanger police, their targets and innocent bystanders.

Bou Bou's Law, introduced last week by Sen. Vincent Fort, D-Atlanta, would allow no-knock warrants, which authorize police to enter homes without announcing themselves, only in cases where the police can show probable cause to believe that making their presence known prior to entry "would likely pose a significant and imminent danger to human life or imminent danger of evidence being destroyed." That rule is stricter than the standard the Supreme Court has said is required by the Fourth Amendment: "reasonable suspicion" that knocking and announcing "would be dangerous or futile" or "would inhibit the effective investigation of the crime."

It's not clear that Fort's proposed restriction would have spared Bou Bou the injuries that have left his family with $1.6 million in medical expenses and forced him to undergo a series of surgeries that will continue into adulthood. The cops who raided the home where he was staying with his sisters and parents were looking for his cousin Wanis Thonetheva, a small-time meth dealer, and they argued that his history of gun charges suggested they would face violent resistance.

It turned out that Thonetheva no longer lived in the house, where police found no drugs or weapons. He was unarmed when police arrested him later that day at a different location.

The Habersham County grand jury that investigated the raid nevertheless concluded that Thonetheva's history justified the no-knock warrant. Even under the stricter standard favored by Fort, a judge might agree.

Assuming police could not meet that test and therefore had to announce themselves, it might not have made any difference, because the raid occurred between 2 and 3 a.m., when everyone in the house was asleep. It is doubtful whether the Phonesavanhs would have heard and understood the police, let alone that they would have had enough time to answer the door before it was knocked down.

Police are supposed to wait a "reasonable time" after announcing themselves, but it's not clear what that means. According to a 2003 Supreme Court decision, the relevant question is not how long it takes to answer the door, but how long it takes to flush drugs down the toilet. In that case, the court said 15 to 20 seconds was plenty of time. For people awakened in the middle of the night, that is probably not enough.

Another Georgia bill, introduced by Rep. Kevin Tanner, R-Dawsonville, would require that no-knock search warrants be executed between 6 a.m. and 10 p.m. "unless the judge for good cause expressly authorizes execution at another time." A similar timing expectation for all searches would make the knock-and-announce rule more meaningful.

The Habersham County grand jury found that the botched raid in which Bou Bou was injured and the "hurried, sloppy" investigation that preceded it could be explained by a false sense of urgency. "Whenever reasonably possible, suspects (should) be arrested away from a home," the jurors said. "There should be no such thing as an 'emergency' in drug investigations."

It is bad enough that police respond violently to peaceful transactions involving arbitrarily proscribed substances. When they kill old ladies and burn babies in the process, we have to ask what they hope to accomplish and whether it's worth the price.