When Police Break and Enter

The federal raid in Texas raises questions about forcible searches

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.

The legalities of the Fourth Amendment controversy have been of little help to the ATF from a public-relations standpoint, however. Critics have charged that the ATF's "invasion" of the Branch Davidians' home provoked a defensive reflex.

Indeed, the likelihood of a violent response from the Branch Davidians was so high - given the sect's teachings and the quantity of arms they had amassed - that Cogan wonders why the ATF agents approached the compound at all. Surrounding it at a safe distance and addressing the sect through loudspeakers would have saved lives and respected the "knock and announce" principle, the law professor says.

"It seems like the ATF likes to stage things in the most obtrusive manner possible," says Steve Sessinghaus, a lawyer in Tulsa, Okla. Mr. Sessinghaus represents John Lawmaster, whose home was raided in 1991 by the ATF. Mr. Lawmaster, away at the time, returned to find his doors kicked in and a note: "Nothing Found - ATF."

"We got a flurry of mail about that," ATF's Stanford says.

Lawmaster and the National Rifle Association, which is helping with his legal expenses, want to know why the ATF raided him. He believes someone who holds a grudge against him made trouble by falsely reporting to the ATF that he possessed an unlicensed machine gun.

"We had good cause to be there, and we are very willing to have the whole story come out in court," Stanford says. But Sessinghaus alleges the ATF sealed the affidavit used to obtain the search warrant. "They say it's to protect their informant, but we feel it may be to protect themselves," he says.

Twice Lawmaster tried unsuccessfully to get a district court to unseal the affidavit. Several weeks ago the federal 10th Circuit Court of Appeals in Denver heard the case. Sessinghaus says Lawmaster may sue the ATF if he discovers that the bureau "embellished" the evidence to get a search warrant.

Many law-enforcement agencies have mishandled forcible entries over the years "through carelessness, poor planning, or whatever," says Joe Hanley, a spokesman for the Federal Bureau of Investigation in San Antonio.

In 1977, Congress restricted the ability of the Drug Enforcement Agency to conduct "no knock" raids, following a string of lawsuits by Illinois homeowners who were targeted by mistake.

Although the ATF is currently under fire, "I would not want to lay all the sins of all federal law-enforcement agencies at ATF's doorstep," says the FBI's Mr. Hanley. "They have done outstanding work over the years. They're a good agency."