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Bennett L. Gershman Headshot

'Flash-Bang' Searches

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It's one thing for the U.S. military to raid a compound in Kabul using incendiary grenades to secure and enter the premises. It's quite another thing for U.S. police officers to execute a search warrant by throwing "flash-bang" grenades into a home, raining the place with rubber bullets, and kicking down every door in the house. Is that conduct necessary? Is it reasonable? Does the Fourth Amendment allow it?

That's exactly what happened when police in Portland, Ore., executed a search warrant for a private home where the defendant resided and who was alleged to have physically attacked his girlfriend, and was reported to possess weapons and drugs. The police were informed that several other persons lived in the house, including an infant, and a prison associate of defendant's. The police decided, although the reasons are not clear, that it would be more risky to arrest the defendant outside the house than inside, so they obtained a search warrant and executed it at 5:30 a.m.

Forty-four police officers participated in the raid. Police pounded on the front door yelling "police, search warrant," and a second later broke down the door with a battering ram. Defendant, who was sleeping on a recliner near the door, was ordered to show his hands and get down, which he did, but not before another entering officer threw a flash-bang device into the center of the room which exploded near the defendant, causing first and second-degree burns to his body.

Meanwhile, other officers stationed outside the house shot out the second-story windows with rubber bullets and kicked in several doors, while other officers attempting to secure the second floor blindly threw a second flash-bang device into an open area near where a man and woman were lying in bed, the explosion causing the bed to catch fire. The police threw the bed and box spring out the window. The police apparently enjoyed themselves. Text messages by police to each other described the raid as "big time fun," "good time had by all," "except for the guy who laid on the flash-bang... second-degree burns... missing half a mustache."

The defendant was arrested and charged with possessing several weapons seized from the house. His motion to suppress this evidence was denied, largely because the police had a judge's warrant and would have discovered the evidence anyway, regardless of the way they executed the warrant. To be sure, the court did question why it was necessary for the police to employ such a military-style invasion, and use such violent and dangerous tactics to execute the warrant, including blindly throwing explosive devices into rooms near persons, including a room occupied by innocent bystanders. However, consistent with a recent decision of the Supreme Court, if evidence is discovered during the execution of a warrant, it doesn't matter if the police used excessive force or violated rules regarding the warrant's execution. They would have found the evidence anyway.

But is this correct? This result doesn't seem to square with constitutional rules of privacy and normative standards of the proper use of force by police. Should this type of violent, intensive, and dangerous search ever be allowed? Should courts allow police departments in executing search warrants to enter a person's home using military-style tactics, throw exploding flash-bang grenades in rooms near occupants, blindly fire rubber bullets through windows, and kick down every door of every room of a house? Or, to put the matter in constitutional terms, does the Fourth Amendment's reasonableness requirement impose any limits on the use of such force?

The police use of "flash-bang" incendiary devices to execute warrants has received some limited discussion by the courts, but the issue has largely escaped public attention. However, the scene depicted in the Oregon case above is not unique. Other judicial opinions have described scenes resembling military raids on compounds, and the description of the consequences of those invasions is unnerving -- fires from flash-bang explosives causing serious injuries to innocent occupants, and extensive damage to property, to say nothing of the fright, terror, and potential violent responses by startled occupants.

Why use flash-bang tactics? Police justify the use of flash-bang explosions as a diversionary tactic to protect the safety of the officers while they are attempting to enter a residence when there is a high risk of danger from occupants, especially those who may be engaged in violent conduct, have a background of violence, and possess weapons. By the same token, there is the obvious danger that innocent bystanders may be injured, and police themselves may face added danger from occupants who have just been awakened and may believe their home is being invaded by strangers up to no good. Is the use of such intense force by police ever permissible? If so, what are the factors that courts should consider? The guiding principle here, as in all Fourth Amendment contexts, is the constitutional command of objective reasonableness.

Initially, it is clearly the law that police may obtain search warrants that authorize entry into a house without prior notice to the occupants, which ordinarily is a constitutional requirement. Such "no-knock" warrants can be strategically planned and executed to protect police safety and as well as protect the objects of the search from destruction. To the extent that a flash-bang device is used as a diversionary tactic, it should be used only after careful and extensive planning, and only where the police have determined that it can be used safely without harming children, elderly persons, or other innocent persons. Moreover, police should employ the tactic only as a last resort, and only where it has been determined that there are persons in the premises who are armed and dangerous, and where it is reasonable under the circumstances to believe that a diversionary explosion is absolutely necessary to support the police entry. Also, flash-bang grenades should almost never be used indoors; exploding them outside the home, on a street, walkway, or driveway, creates the desired diversion while preventing the kinds of serious physical and psychological injuries to persons and damage to property that predictably happen using such devices indoors.

When discussing the protections of the Fourth Amendment, courts uniformly give special sanctity to a person's home, especially in a high-tech society where personal privacy increasingly is being lost. Thus, when applying the Fourth Amendment to flash-bang searches, the key question courts need to answer is whether under the circumstances the use of this dangerous tactic is reasonable. If not, the search is tainted, and the evidence should be thrown out.