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WHEN COPS BURST THROUGH YOUR DOOR: WARRANTLESS HOME RAIDS
You are relaxing with your family at home one evening when a band of armed thugs crashes through the door and invades your house. Their shouting is terrifying. Glass breaks, walls are smashed, and your children scream. When the men grab you, you resist, so they beat you and use a stun gun—or maybe even a real gun—against you. You are now battered and bloody, frightened and confused. The home invaders wrench you and your loved ones from your sanctuary and, in the dark of night, whisk you away in a car.
Now imagine these hooligans are wearing uniforms and badges.
Your home is your castle, impervious to entry by any agent of the state unless you grant them permission, or if they show up with a warrant signed by a judge—with the exception of certain emergency situations.
But some cops don’t see it that way. They all but ignore the Fourth Amendment and its protections against “unreasonable search and seizure.”
You may think you are safe in the security and privacy of your four walls. So did the people profiled here. As with so many issues concerning abridgment of civil liberties, you never know it can happen until it happens to you.
The nation’s founders wisely created the Fourth Amendment to act as a personal firewall against overzealous policing:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The amendment protects us against warrantless searches and raids of places where we have a “legitimate expectation of privacy”—legally defined as an expectation that is generally accepted by society as being “reasonable.”
But what is reasonable and what is not? That question has been rigorously litigated in U.S. courts for decades. In making a determination, courts must strike a balance between protecting privacy rights and maintaining the legitimate interests of the state, such as upholding public safety. Unfortunately, in recent decades marked by violent crime and the growing threat of terrorism, the needle seems to be gradually shifting away from privacy concerns and toward government interests.
In certain cases, police can search “persons, houses, papers, and effects” without a warrant. Chief among them is an “exigent circumstance”—an emergency situation where delaying action in order to obtain a warrant is not feasible, including when someone’s life or safety is at stake, when a suspect is about to escape, or when evidence is about to be removed or destroyed. Police also don’t need a warrant to search a person or property when the search is related to a lawful arrest or if the suspected illegal items to be seized are in plain sight.
But citizens still have the ability to demand that their Fourth Amendment rights be upheld when their expectation of privacy is being violated—and to seek redress from the courts when in fact it has been.
Consider the Magas family. When the police showed up at their Maryland home one night during a birthday party to investigate allegations of underage drinking, the family had every right to refuse the cops’ demand for entry. The officers, who had no warrant, had already entered onto their property, peered into the backyard area, and spotted young people drinking from plastic cups. In that rear space, protected from street view, the family had a reasonable expectation of privacy.
But the cops didn’t see it that way.
The Magases’ hometown of Damascus, Maryland, rests in a bucolic corner of Montgomery County, about forty miles northwest of Washington. On the outskirts rise some large custom-built houses, well spaced across towering trees and clipped lawns, including the Magas family home, a three-story, 5,900-square-foot residence with three acres, a pool, and a five-car garage, set far back from Damascus Road.
George Magas, a long-established member of the community with a successful at-home CPA practice, moved there in 2002 with his wife, Cathy, and their four sons, star football players at high school in the mostly white, mostly upper-middle-class town of eleven thousand.
The close-knit family spent a lot of time together, and George and Cathy were active in the community, supporting several youth groups with time and money. George had coached the high school football, baseball, and basketball teams, and Cathy kept busy with the football team’s booster club and served as team mother.
Life was good. But that all changed on one Saturday evening, January 4, 2014.
It was a punishing winter night, with plummeting temperatures and snow on the ground from a recent storm. But that didn’t deter about forty-five people from attending their son Nicholas’s twenty-first birthday party. The younger guests gathered downstairs in the large finished basement, where cold beer in cases and a half keg awaited them, even though some were under twenty-one.
Upstairs, George, Cathy, and about five friends—including Tom Stack, a seasoned detective for the Montgomery County Police Department—were watching football and enjoying pizza delivered from the local Papa John’s. This being a small town, they knew the delivery guy; he’d gone to school with their kids, and his father was an acquaintance. Just before midnight, they brought a cake downstairs, and everyone sang “Happy Birthday.”
George and Cathy had no idea that, as they headed down to the basement, a text was being delivered to the Montgomery County Police Department’s Alcohol Initiatives Section:
Hey man, not sure if your working but if your not busy there I just delivered a pizza to a party at [xxxx] Damascus rd and saw some young looking people with beer.
Yes, the pizza guy turned in his own customers.
The police department forwarded the tip to Officer Jeremy Smalley and Montgomery County sheriff’s deputy John Durham, who were both working on the Alcohol Initiatives Section’s Holiday Task Force.
No one saw Smalley and Durham as they pulled up in an unmarked black van and parked next door at Saint Paul’s Catholic Church. They quietly crossed onto the Magases’ property and moved toward the rear of the house, where an outdoor stairwell leads to the basement. The police could hear the sounds of a party. Through binoculars, Durham spotted young people laughing and drinking from red plastic cups. One young man was urinating in the bushes. Based solely on those observations, Smalley and Durham determined there was probable cause to suspect underage drinking.
The persistent lawmen made their way past the detached garage to the rear corner of the house. There they saw another young man urinating who, to them, appeared to be under twenty-one.
Durham walked to the top of the stairwell and peered down, spotting three individuals at the bottom, “appearing to be underage with half a keg and all holding solo cups with Amber beverage,” his partner Smalley wrote in the police report.1 “And they’re taking a selfie.” Durham demanded ID and determined all three were under twenty-one. He seized their smartphone as evidence.
They called in backup from the Alcohol Initiatives Section to cordon off the property, lest anyone tried to flee.
What happened after that is deeply disputed.
The Magases’ version of events differs wildly from the police report. George said that he and his wife, Cathy, had gone back upstairs when they saw a flashlight streaming through the windows. George walked into the kitchen and spotted two uniformed officers peering through the window. He opened the door, stepped outside, and asked what they were doing.
“They said they had a suspicion of an underage drinking party here and were very adamant about smelling marijuana,” George recalled.2 “And I said, ‘Well, there’s no marijuana, I can’t smell any here. And I don’t think any underage drinking’s going on, either.’”
To George, the men seemed to be itching for a confrontation. “I felt like I was in a boxing ring, and I started getting a little scared because they were rocking back and forth and trying to egg me on,” he said.
George had no stomach for a fight with the cops. Instead, he offered to fetch his driver’s license to identify himself. Walking back into the kitchen, he saw Nicholas and told him to lock the door. “I really don’t trust them. I’m scared,” he said. He got the license and rejoined the cops waiting out front.
Copyright © 2019 by David Kirby