Mimesis Law
16 December 2017

Search Warrants: When Is The Last Time A Judge Said No?

July 29, 2015 (Mimesis Law) — A little over a year ago, 19-month-old Bounkham Phonesavanh Jr. was horribly disfigured by an explosion.  Heavily-armed militia stormed into his family’s rural home and unleashed hell.  While this sounds like a scene from some war-torn third world country, it was not.  American police, armed with military-grade weaponry and almost impenetrable legal authority, stormed the private residence of US citizens in Douglaston, Georgia.  Georgia, America.

The toddler was severely burned by a flash-bang grenade that was tossed into his crib during the execution of a search warrant.  The search warrant was granted to law enforcement over an alleged $50 sale of meth. Most people would consider putting a child who has not even celebrated his 2nd birthday into a coma over the sale of a personal use amount of drugs to be a bad thing.  But the law enforcement agencies of Georgia (the American one) disagree.  The local sheriff, Joey Terrell, found nothing wrong with the raid.  The local District Attorney agreed.  The Georgia Bureau of Investigation found no reason to issue so much as a sternly worded rebuke of the disastrously minor drug bust.  But then, last week, the feds announced that Georgia deputy Nikki Autry would be indicted for her role in the fiasco. While we are still a long way from seeing unlawful law enforcement agents charged on par with the true nature of their crimes, Deputy Autry is most definitely “in trouble.”

If you weren’t angry enough at the completely disproportionate response to the very minor crime, then you will be outraged when you learn that Autry apparently made up the crime that was the entire basis for the search warrant that lead to the child-maiming raid.

Autry presented an affadavit to a magistrate judge falsely swearing that a “true and reliable informant” had bought a small amount of methamphetamine at a residence.

Based on the erroneous information she presented, which also included claims of “heavy     traffic in and out of the residence,” the judge issued Autry a “no knock” search warrant.

U.S. Attorney John Horn announced that Autry would be indicted on four counts of civil rights violations, because “[w]ithout her false statements, there was no probable cause to search the premises.”  This allegedly dirty cop will have her day in court, but the U.S. Attorney does not make a practice of publicly announcing charges that they don’t think they can prove a hundred times over.

It is tempting to ask how could something like this happen?  How could a judge be fooled into issuing not just a search warrant, but a no-knock warrant based upon no real evidence?  Anyone familiar with the search warrant process, though, fully understands that judges tend to be little more than rubber stamps in robes when it comes to allowing police to invade our homes.

While the law surrounding when the government is allowed into the home is immense, it is only words on paper for too many judges and almost all cops.  The search warrant process begins simply enough, with a cop asking a judge to grant documented authorization to enter someone’s home to search for evidence of criminal activity, past or present.  In drug cases, the “factual” basis usually involves information provided by either a confidential informant or undercover cop.

The confidential informant is a citizen who provides the police with information, always for a benefit, real or imagined.  When the cop intends to use this information to obtain a warrant, the “confidential” part of confidential informant means he doesn’t have to appear in court.  The cop attests to his informant’s credibility, which usually amounts to the following exchange between judge and cop:

J:  Have you received information from this informant in the past?

C:  I have.

J:  And has that information led to the discovery of credible evidence of crime?

C:  It has.

And that is pretty much it.  The search warrant proceeding involves the intersection of two of the most destructive themes of the criminal justice system.  A judge believes that cops are truthful, and a cop believes that the ends always justify the means.  This tends to manifest in a boilerplate back and forth between judge and cop that inevitably ends with the issuance of the requested warrant.

While a search warrant application based upon testimony from an undercover cop is slightly different, it involves, at best, the most cursory examination of credibility.  Unless the cop blatantly pisses the judge off, he will be deemed credible.  The undercover merely tells the judge that he bought drugs at a particular location X number of times.  No corroborating evidence is requested.  The judge believes said undercover and the narcotics team is off to break down the door of someone’s home with freshly printed search warrant in hand.

Now, if you think that involves too much live-action, credibility-determining testimony, then you will be happy to know that tons of search warrants across this country are issued without anything more than an exchange of paper.  The cop writes down alleged things on a piece of paper, a judge possibly reads that piece of paper, and then gives the cop back a different piece of paper.  This new piece of paper allows the cop to requisition his department’s newest toys battering rams and noisemakers.

It is frustrating that in a court of law, credibility is granted to officers merely because “why would they lie?”  These officers often end up before the same judges asking for another search warrant.  In such a scenario, why shouldn’t a judge pull some of the old warrant applications to see what actually became of those cases?  It might be worth digging a bit to see if a particular narcotics cop continually talks a big game of cocaine trafficking during the search warrant application but only seems to get personal amount possession charges on the back end.

Perhaps the most dangerous and outraging aspect of the modern search warrant is the fact that they are almost exclusively issued as “no knock” warrants.  Following the 1-2 minute proceeding where the judge finds the police officer’s testimony credible based upon nothing, the judge issues a special kind of warrant that allows the cops to bust down the front door of the target residence, and run in with guns drawn scaring the living hell out of everyone inside who has not been completely incapacitated by a flash grenade or bullets.

The reason for the issuance of such a warrant is simple enough to understand.  If the cops knock on the door, then all of the criminals inside will flush all the evidence or train their guns on the intruding officers.  While there are certainly instances where this might happen, is this really a concern for a kid selling crack out of his aunt’s spare bedroom?  Sure, the kid might hop out the back window or get rid of his stash, but should avoiding those scenarios override the constitutional protections that all of the other residents of that same home still fully possess?

What gets so lost in our ‘understanding’ of modern policing is that television portrayals of policing are just that — television.  Jack Bauer might look cool when unconstrained by any laws governing the way he is supposed to interact with people (even suspects), but that is not the society we live in.  Remember that every time you hear about the police kicking in someone’s door, that person is, under the law, presumed innocent.

You might think that showing up at around 6 a.m. (the standard time for the execution of the “no knock” warrant) and announcing, even forcefully, your presence as police officers would be sufficient to avoid having to bash down a door.  But maybe that is why you aren’t a cop.  Video after video has surfaced showing cops using excessive force, often beating a lone suspect despite having him outnumbered 10 to 1.  Cops are aggressive, and if they have their choice between respecting the sanctity of a home (often times the home is occupied by a number of other people who have nothing to do with the alleged criminal activity, but that doesn’t mean they don’t get invited to the house party) and breaking down a door to go all Hollywood cop on a bunch of criminals, they will choose the latter.

But the search warrant is a perfect example of how far police are willing to go to make damn sure that they mitigate any and all possibility of danger.  Flash grenades and SWAT teams are very real things.  Every home that is unlucky enough to be the target of a search warrant is treated as though it is Pablo Escobar’s palace.  Instead of proper police investigation to find out who the true kingpins are, the police are more than happy to use their loudest toys and hope that they might stumble upon a stockpile.

Carte blanche allowance has led to the infamous stories of sheer tragedy, like the baby who must now live out his days maimed and disfigured.  But what is missed are the thousands and thousands of family and friends who have had to endure the terrifying experience of being awoken and thrown to the floor by strangers with machine guns.  All because their son or brother sold a few dime bags.  Or, because a cop lied and got a search warrant.

5 Comments on this post.

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  • Bryan Gates
    30 July 2015 at 2:56 pm - Reply

    The current state of 4th Amendment law and warrant procedure invites cops invent confidential informants. The practice offers a convenient way to catch people they “know” are drug dealers with a near-zero chance of getting caught. As long as the cops include the phrase “confidential informant who has provided reliable information in the past” they can put whatever words in the CI’s mouth they choose. No one will ever check to see if the informant in fact exists. I’m not sure how the feds in maimed toddler case concluded that the CI was bogus. Maybe they used the grand jury subpoena power that the cops could not stonewall the way they do to everyone else.

    The system relies on the honesty of cops, but it is vulnerable to dishonesty in ways that would be laughable in any other context. Who would have confidence in a bank if it never required tellers to balance and reconcile their cash drawers? Suppose the only way speed limits were enforced was requiring drivers to sign a statement every month that they did not exceed the posted speed? Why not let students take the SAT at home as long as they promise they did not get any assistance?

    The criminal courts are nominally an adversarial process. However, a defense attorney who suspects an informant is bogus would rarely be able to convince a judge to order the cops to produce a CI without some showing that the CI was bogus, which you cannot make without finding out who the CI is. No one polices the police.

  • Ken Womble
    30 July 2015 at 3:04 pm - Reply
    • shg
      30 July 2015 at 3:35 pm - Reply

      This is so old school:

      “Supposedly this defendant doesn’t see the police coming, but elects out of nowhere to take the object out of his pants pocket and dump it in a garbage can?” Justice Guy J. Mangano said. “I find it incredible that they thought it was a gun.”

      And I remember when dropsy died with Irving Younger.

  • An Amorphous Mass of Ill Legality | RHDefense
    26 August 2015 at 6:01 pm - Reply

    […] protections that snitches enjoy are so strong, that cops no longer need actual snitches. They just make them […]

  • ‘Twas The Night Before Lynchmas
    24 December 2015 at 9:51 am - Reply

    […] I demanded to know why these cops were even here, As our Fourth Amendment rights seemed to be very unclear. “We have a search warrant,” said the head of this crew, But whatever it was based upon, I knew couldn’t be true. […]