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What Legal Rights?

They Don’t Need No Stinkin’ Warrant

by BOBBIE STEIN

It is not news to me, after practicing criminal defense and teaching in law schools for over 25 years, that the police don’t always follow the letter of the law. But somehow…when four uniformed police officers appeared at my back door, I rather naively assumed that I could keep them from entering my kitchen if I just told them that they could not come in. I was wrong.

This was not the first time that police showed up on my door step. Nor the second or third time. In fact, the police come to my house with some regularity. I have a son with Tourette’s Syndrome and all that goes along with it. His vocal ticcing can be loud and disturbing, especially now that he is almost 21 years old. He sometimes yells things that sound scary to the casual observer. He also experiences episodes of thundering rage, which often triggers others in the household, to react in loud and ill advised ways, myself included. So, one can hardly be surprised that the neighbors call the police. I suppose that some of the time is out of legitimate concern that there is something terribly wrong going on at my house. But I suspect that many times, they just grow tired of the noise.

I live in a small community and most of the people who live near my house know about my son. I have personally spoken to them about our struggles and have baked them cookies to apologize for difficult nights. Our small town police department too, knows all about my son. Many of the officers know him personally and have had cordial relationships with him over the years. It was surprising then, that the police knocked on my door the other night, telling me that they needed to see my son. The rookie cop who directed me to move out of the way so that he could enter, treated me as a suspect. As if there was domestic violence going on and I had been physically abusive to my son. Incredulous, I asked if he had not gotten the memo about what goes on at this address. He insisted that he knew not of what I spoke, and proceeded to “ma’am” me..in that way that police do. They must get formal classroom instruction on how to condescend while addressing a suspect as “sir” or “ma’am”.

When I persisted in trying to explain that this incident was not any different from all the rest, the woman officer standing away from the doorway admitted that she knew my son. Why, then, had she or the other two officers, at least one of whom I recognized from previous encounters at my house, not told the new guy what was really going on. I gathered that this was some sort of a training mission for him…one that could have had disastrous consequences. His ignorance of the true facts created a volatile and potentially very dangerous situation. Witness several tragic incidents over the past few years where police have killed mentally disabled people because they did not understand what they were dealing with and made wrong assumptions.

My son has been beaten up by police in an airport because they did not understand that he was “ticcing” and thought that he was acting suspiciously, even though he was slapping his own face and not bothering anyone else. I was not about to allow this gang of four to storm into my house and into my son’s bedroom; his inner sanctum, the only place he currently feels safe. And oh yeah, they didn’t have a warrant.

I did my level best not to go into my professorial mode and lecture them about the Fourth Amendment. I might have mentioned it, however, when I told them to go get a magistrate to sign a warrant if they wanted to come in. They insisted that they did not need a warrant. They felt that the yelling that they had heard from outside the house justified their entry. Of course, we had been standing on opposite sides of my screen door talking for several minutes without any loud noises in the background and there didn’t seem to be anything amiss, other than my defiant fifteen year old daughter coming downstairs to give her own brand of lecture to the police about their not being allowed in without a warrant. Any exigency the officers might have initially imagined was surely dissipated by the time they pushed their way into my kitchen. I banished my daughter from the scene to hold court with the authorities on my own.

I am used to using the law to protect my clients. I know that a warrant is needed to enter into a home….and I am aware of all the exceptions to the warrant requirement. But while the Constitution might provide protection in a court of law, it does not protect you in your own kitchen. In some surrealistic scene I stood face to chest with a cop towering over me telling me that I was obstructing justice. …there I was, about to be arrested for a Penal Code section 148, when my son finally made his way downstairs.

The police accompanied him outside where they chatted for a while before satisfying themselves that I did not need to be taken into custody and that my son felt “safe” to stay at home. There was something very wrong about that picture. But the police were right about one thing. They did not need a warrant.

Bobbie Stein is a criminal defense and civil rights lawyer and writer, living in the Bay Area.