A Special Guest Post

“SUMMER”

(For Aiyana Stanley-Jones)

By James A. Britton

“NO NIKKI, NO!”

That was the piercing cry that shot through the Summer air on that early Sunday afternoon—suspending our Sunday ritual of fried chicken, California blend mixed vegetables, rice, gravy, poundcake, and of course, grape kool-aid.

The voice was unmistakable.  I looked at my brother—both of us still clad in our stocking feet fixing our Sunday dinner.   Without a word, we both ran headlong down the street—my brother arriving at our neighbor’s house first, some seven houses down.

Through the sobs and tears, we learned that my sister’s boyfriend, a teenager still, had earlier that morning  been shot and killed—murdered as he sat with his brother in his car.  His brother, the boyfriend of my sister’s best friend, was shot in the foot but survived.

Too much time has passed for me to remember the motive—if there was one. Doesn’t matter anyway.  What matters is that another young black man, eighteen or so, tall, muscular—A Native Son–would not make it to see his twentieth birthday.  Some years later, his nephew, the seed of his brother and my sister’s best friend, would bear his name . . .

When you grow up on the West Side of Detroit, you know what it is to fear Summer.  Not the heat index or the prospect of summer school, but that Summer, through convulsions and fits of anger, would purge the earth of one its young.  Summer has always had a way of corrupting young idle hands and idle brains that had idle time But the corruption it worked was no idle one.  Summer, too often, played a zero-sum game. It is no wonder then that, when my brother was out of my presence, and perhaps stayed out longer than normal, that I began to worry that my brother had become one of the Summer’s latest casualties. It is also no wonder that I felt a sense of relief when he would come home safely—the same applies to my sister.

It could be anything really—the bad end of a prolonged stare down; because he wanted your shoes, coat, chain, or car; because you bumped each other at the Afro-World Festival; but usually, it was because you were in the wrong place at the wrong time.  At least that’s what the sonless mothers, funeral preachers, family and friends told each other and themselves. No sense in attempting to further rationalize the irrational.

Honestly, that aggressive, take no mess mentality was with all of us to a certain degree.  It’s with many of us still.   It’s a familiar ritual.  First, there would be the stare down—on the basketball court, at the mall, at Hart Plaza—didn’t matter.  Next comes the throwing up of hands as if to say, “What Next?” a symbolic “Whatchuwannado?”And depending upon which tools one  had been given to express his young, wild, undefined rage, the answer to the “What Next?” could end up being another story about a young black being in the wrong place at the wrong time.

And so it was—an endless parade of horribles.  Summer after seemingly endless Summer.  Some names I remember, many I’ve forgotten, or never knew.  Lashern Moorer (his fiancé was pregnant—isn’t that always the case?), Chris Moore, Bimbo who never made it back from Minnesota; my mother in ’88, although hers was a self-imposed violence of a different kind; Russell, my best friend in kindergarten, his father, shot in the head—that one made the news; there were others—My uncle Stony, Easter Sunday 1983 right around the corner on Alpine. I was too young to remember. Sometimes, I didn’t go to the funeral—a couple times I did.  It’s hard though, to stare down your own mortality and see it carried away by six sobbing friends.  I remember Chris and I were about the same age, almost the same height, same complexion and build.  Sometimes it was better not to go.

* * * * * * * * * *

In the middle of May, 2010, Jerean Blake, a 17-year-old high-school student, was killed because he looked at a man too long, too strong, or too wrong.  His life was taken absent any ensuing outrage.

Three days later, the Detroit police, executing a no-knock warrant at the suspected killer’s address, shot and killed Aiyana Stanley-Jones as she slept on the front living room couch.  Before entering, the police threw a flash grenade through the window—normally used to stun the occupants of a building, especially when the police are certain that only the suspect is in the building.  The spark from the grenade set little 7-year old Aiyana’s blanket on fire.  The police entered, made contact with little Aiyana’s grandmother, the police officer’s gun fired, striking Aiyana about the neck and head. She died there.

Unfortunately, this tragedy was a predicutable consequence of a recent ruling from the highest court in the land,

* * * * * * * * * * * *

Booker T. Hudson, Jr. was sitting in his home in Detroit on August 27, 1998 when the Detroit Police, only three or four seconds after announcing themselves, burst in and seized cocaine that was in his pocket and a gun, may have been hidden in a nearby sofa.  Mr. Hudson was sitting on a chair in the middle of the living room and never had an opportunity to answer his door.  The police were executing a search warrant for drugs and possibly a gun. Mr. Hudson was tried for possession of cocaine with intent to deliver and the possession of a firearm during the commission of a felony.

At trial, Mr. Hudson argued that the  evidence should be suppressed  because the police officers admittedly violated “knock and announce rule” under the Fourth Amendment, which requires that police officers must first knock, identify themselves and their intent, and wait a reasonable amount of time so that the residence’s occupants may let them in.

The trial court agreed and  ruled that the prosecution could not use the evidence at trial.  The trial court’s ruling, however, was overturned on appeal and Mr. Hudson was tried and convicted of drug possession.  He was sentenced to 18 months probation.

Mr. Hudson appealed his conviction arguing that it was unconstitutional based on the knock and announce violation.  The Court of Appeals rejected this argument and affirmed the conviction.  The Michigan Supreme Court declined to review the case.  .

The United States Supreme Court, however, decided to hear the case.

Professor David Moran of Wayne State University Law School represented Mr. Hudson before the Supreme Court. Professor Moran argued that, based on the court’s earlier cases ruling that a violation of the Fourth Amendment renders tainted  the evidence seized as a result of a Fourth Amendment violation, that the evidence seized by the Detroit Police should be suppressed—which would likely result in a dismissal of the charges against Mr. Hudson.

Essentially, the argument goes, because  the “knock and announce rule” is firmly embedded in the Fourth Amendment, which guarantees that persons will be secure in their homes, papers and effects, and will not be subject to unreasonable search and seizure, police officers should not be rewarded for violating this core constitutional requirement.   Thus, because the Fourth Amendment insists that an unreasonable search or seizure is an illegal search or seizure, the use of evidence secured through an illegal search and seizure is barred in criminal trials.

Professor Moran also focused the Court’s attention on the protective role the exclusionary rule serves.  Obligating officers to knock and announce, he argued, protects    the occupants of a home from surprise and embarrassment and preserves the dignity of a person who would be otherwise surprised at the insistence of a police officer banging at a door.  Professor Moran also argued that the rule protects both the occupant and the police officer from harm since, in a perfect situation, the occupant would have an opportunity answer the door as opposed to having their door or window broken in order for the police to obtain a surprised entry. (Otherwise, as Justice Antonin Scalia pointed out, an occupant would be justified in using force to repel an officer who doesn’t announce himself since the occupant has no idea that the officer is not otherwise an intruder).

As a practical matter, Professor Moran argued that suppressing the seized evidence would be the only effective way to keep police from violating the “knock and announce rule.”  Contrary to the government’s arguments, the fact that private citizens could sue for monetary damages would not be sufficient to make officers abide by the “knock and announce rule” because, among other things, at the time the Hudson case was heard, there was no single reported case where a private citizen was able to successfully sue the police department and obtain anything other than paltry damages—even in the case where the police had inflicted grave bodily harm.  As such, and because police are most times protected by qualified immunity, if the court ruled that the seized evidence could not be suppressed, police officers would have no practical incentive to honor the “knock and announce rule” rendering nugatory the constitutional mandate that police officers knock and announce themselves before entering a home or building in order to serve a valid search or arrest warrant.

The United States Supreme Court rejected these arguments in a 5-4 majority—Justice Antonin Scalia writing for the majority.  And while the Court made several observations as to why it chose not to honor the “knock and announce rule”, the Court’s principal justification centered on the rationale that the policies underlying the rule itself, protecting property from being destroyed, preserving a person’s dignity and the sanctity of their home and officer safety (Justice Scalia reasoned that the fact that an officer could be shot would be a sufficient incentive to otherwise abide by the “knock and announce rule”) were not related to the evidence that would ultimately be seized, (i.e. crack cocaine).  And because the “knock and announce rule” was not aimed at protecting the “papers and effects” normally found in a home and protected by the Fourth Amendment, the normal rule that Fourth Amendment violations lead to the exclusion of evidence didn’t apply.

Two things are telling from oral argument (actually, there were two rounds of oral arguments). In the first argument, Justice Sandra Day-O’Connor began questioning Professor Moran with a series of soft-ball questions, asking Professor Moran about other states with no-knock statutes and why a police officer would want to execute a no-knock warrant. However, because Justice O’Connor retired before the Hudson decision was issued, the case was called for reargument, the second time with Justice Samuel Alito in Justice O’Connor’s place. (Professor Moran believed that the case might have turned out differently had Justice O’Connor remained on the Court when it rendered its decision.)

At the second argument, Justice Stephens asked a poignant question: why did the government concede that there was a violation of the “knock and announce rule”?  Because the search warrant allowed the police to search for both drugs and guns, and because one of the principal reasons police officers may dispense with the knock and announce requirement is to prevent the destruction of evidence (such as crack cocaine) and to protect officer safety (such as being shot with guns), Justice Stephens signaled his discomfort with the government so easily conceding that a violation had occurred. (Justice Stephens suspected, rightfully, that, by conceding that there was a violation, that the government was seeking a categorical rule with respect to all knock and announce cases. If the court had found that there was no violation, there would be no need to decide the suppression question, which was the central issue in the case, because as a rule, the court attempts to decide cases on the most narrow grounds possible as to avoid deciding thorny constitutional questions if at all possible In essence, if there was no constitutional violation, there was no need to answer the next question—whether the evidence should be excluded).

Despite Professor Moran’s best efforts (aided by the Michigan ACLU), the evidence seized as a result of the Detroit Police Department’s violation of the “knock and announce rule” was not suppressed and Mr. Hudson’s conviction stood.

* * * * * * * * * * * *

On that warm Summer Sunday night, Aiyana Stanley-Jones did not stand a chance.  How could she?  Weeks earlier, one Detroit police officer, Brian Huff, had been fatally shot and four other officers wounded after responding to a midnight disturbance call.  Weeks later, an elderly woman was killed by a stray bullet after another elderly man tried to protect himself from being carjacked.  Tension was palpable.  On the night they executed the arrest warrant, the police were looking for a man who reportedly killed a teenage boy because he looked at him wrong. (Besides, what business did little Aiyana have living in the same house with a man such as the suspect they were looking for?  And weren’t the people in the house guilty of harboring a criminal?)* It didn’t matter that the home was a two family flat—so the suspect could have been in either unit; didn’t matter that there were children’s toys dotting the front yard; it also didn’t matter that neighbors told the police officers that children were inside the home; it didn’t even matter that there was a camera crew from a major cable television station—there was danger inside. Besides—why would the police officers knock, announce themselves and wait for someone to answer the door as opposed to throwing a flash grenade through the window? The Supreme Court had removed any incentive the police ever had for following the Constitutional rule.    One flash grenade later, Aiyana Stanley-Jones was dead—her grandmother a witness to Aiyana’s horrifying demise.

Whatever there is to be said and done about the almost-suffocating violence that happens in most of our major urban centers, one thing is certain: Aiyana Stanley-Jones did not have to die. And despite the fact that our United States Supreme Court has decided that the capture of evidence is more valuable than the lives and dignity of those persons who reside on the other side of a police warrant, Aiyana’s death does not have to be in vain. There is nothing in the Supreme Court’s Hudson decision that would prevent individual states from strengthening a citizen’s Fourth Amendment Protection with respect to the “knock and announce rule.”  For instance, Michigan could do away with the use of “no knock” warrants altogether. Michigan already has a statue requiring an officer to have “permission refused” before he or she may break a window or door in order to gain entry. MCL 780.656.  This statute could be strengthened to require suppression of evidence where this statue has been violated absent exigent circumstances. (For instance, in the case of Aiyana Stanley-Jones, the existence of children’s toys and information that children resided on the premises would be sufficient proof that executing a “no-knock” warrant would not be proper because the need to secure and protect children in the dwelling would be more important than entering the home unannounced in order to surprise a suspect.)  The City of Detroit could outlaw no-knock warrants altogether. At the very least, as a matter of internal police policy, the Detroit Police Department should be made to abolish the militaristic tactics used to execute warrants in areas where our babies, mothers, fathers, and grandparents reside. There is much that can be done to make sure another case like Aiyana Jones does not happen again.

* * * * * * * * * * * *

I am twenty-eight years old now. I have lived many Summers since the last time I went to the funeral of a young black who was in the wrong place at the wrong time—Detroit, Atlanta, D.C. Most of those Summers have been without the attendant grief and anguish  of some of my early Summers in Detroit. There was Clarence about three years ago—we used to play basketball together in the neighborhood. I saw him last at a picnic for my neighborhood high school. He was shot and killed outside a night club. There was also my roommate in Atlanta—carjacked at gunpoint—he wasn’t harmed. Because they had taken his keys and ID, I didn’t sleep well that night.

For the most part though, those that I love and care for no longer find themselves in those “wrong place/wrong time” situations.  We live above the fray so to speak. That is not to say that, like me when I was growing up, there aren’t some kids who look forward to, not only the warm days of summer, but its passage without incident.  (Jerean Blake had friends. There were grief counselors at the school I’m sure. That’s normal. Aiyana Jones had friends too. What can a grief counselor say to a seven year old?) But for the most part, the Summer and I have a satisfactory, even if tenuous, relationship. Work slows. Vacations are planned. And the vestiges of a cold, hard Winter are shuffled off. I consider myself fortunate, blessed. Like Equiano, “a special favourite of Heaven.” Somewhere though, a young black boy looks out of the window in mid-June–the jump rope twirls, the basketball bounces, the bikes glide along—and he hopes for September.

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* As my friend and colleague Michael E. Carter, Esq. has pointed out, in the case of Aiyana Stanley-Jones, there is no evidence that the occupants of Aiyana’s home knew that the police were looking for the suspect. Without the knowledge that the police were actually looking for the suspect (or that he had allegedly committed a heinous murder just days earlier), no one in the house could be charged with knowingly or willfully concealing or harboring persons who are the subject of arrest warrants–which could be an actual crime if the occupants of the home actively concealed the identity and whereabouts of a police suspect.