When Police Break and Enter the Federal Raid in Texas Raises Questions about Forcible Searches

By Scott Pendleton, writer of The Christian Science Monitor | The Christian Science Monitor, March 29, 1993 | Go to article overview

When Police Break and Enter the Federal Raid in Texas Raises Questions about Forcible Searches


Scott Pendleton, writer of The Christian Science Monitor, The Christian Science Monitor


THE raid by the Bureau of Alcohol, Tobacco, and Firearms (ATF) on a religious sect has renewed controversy over forcible entry by law-enforcement agencies.

The tactic backfired on Feb. 28, when the ATF tried to surprise more than 100 armed and waiting members of the Branch Davidian sect in their fortress-like compound east of Waco, Texas. Four federal agents and at least two sect members died in the resulting shootout.

One sect member told the press last week that as soon as the ATF arrived, "bullets started hitting the door. I never heard {ATF agents} say they had a search warrant."

Not so, says ATF spokesman Lester Stanford. "Our agent approached the door. The door opened. The agent said, `Federal agent with a search warrant.' The door closed and shots began to come through the wall," he says.

Some people question whether agents really gave the sect members a chance to obey. "None of this {as described by the ATF spokesman} was done at all, obviously," says Neil Cogan, associate dean of the Southern Methodist University Law School in Dallas.

As evidence, Mr. Cogan cites film clips of the raid. Agents "came ready with ladders and were on the roof rather quickly. I'm troubled by all that," he says.

From a legal standpoint, however, the controversy is rather moot on several grounds:

* The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." That means that in most situations police must "knock and announce," then give the occupants a chance to respond, says David Rudovsky, a professor of criminal law at the University of Pennsylvania. The ATF claims that its agents complied with this requirement.

Even if they did not, however, exceptions are allowed for "exigent circumstances" involving danger to officers or the likelihood that evidence will be destroyed. Some experts believe that the ATF's Waco raid falls within this exception to the "knock and announce" policy.

The ATF conducted 230 "high-risk entry operations" last year, Mr. Stanford says. "That's when you go through the door or window and know that there might be trouble on the other side."

* Even if the ATF were found to be in violation of the Fourth Amendment, Mr. Rudovsky says, that would merely allow suppression of evidence gathered during the illegal search. Because the shootout prevented any search, no such evidence was obtained.

* Although the ATF was investigating the Branch Davidians for violations of federal firearms and explosives laws, sect members will now likely face the far-graver charges of murder and attempted murder of federal officers. Nothing the ATF did or failed to do in conducting the raid will serve as a defense in a trial on those charges, Cogan says. …

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