Drug Task Force Officer Denied Qualified Immunity For Violating Citizen's Rights With Illicitly-Obtained No-Knock Warrant
from the law-enforcement's-'get-out-of-jail-free'-card-just-took-a-hit dept
The law enforcement community and their love of no-knock warrants is starting to cost them. Multiple lawsuits have been filed over the past several years because of these tactics and just last month, a cop was shot dead by a homeowner defending himself against armed attackers who bashed in his door unannounced at 5:30 in the morning. The sick twist to that last incident is that the homeowner is now charged with capital murder, an offense that is punishable by death in Texas.
Now, another suit stemming from a no-knock warrant has gone badly for the law enforcement officer behind the raid. Michael Riley, an investigator for the Rensselaer County (NY) Drug and Gang Task Force is now facing the possibility of a jury trial, all without the safety net of qualified immunity. According to the 2nd Circuit Court's opinion, this is how the no-knock raid went down.
On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team ('ERT') knocking down her door and the explosion of a flash-bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed. As she had been roused from sleep, McColley was clad in only a T-shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied.This raid in search of crack cocaine was based on a "confidential informant's" statement that he had visited that particular address "twenty or thirty times" during the previous six months to make drug deals. The task force placed the house under surveillance to verify the informant's claims but noted no drug-related activity. Riley then ran a background check on the house's listed occupant, Ronita McColley, which came up clean. The report indicated she had no criminal background and, additionally noted that a child resided in the house with her.
Riley then acquired a no-knock warrant based solely on the informant's unverified claims, omitting everything the task force had observed (that being "nothing") ass well as the results of the background check. Judge Pooler dissembles exactly how Riley lied by omission to obtain this warrant.
For each of the search locations with the exception of McColley’s home, Riley identified the resident individual and described his or her ties to drug dealing and criminality. Riley never mentioned McColley’s identity, lack of criminal history, or even the fact that there was a resident who lived at 396 First Street—as opposed to the apartment being a location exclusively used by Stink in his drug dealing enterprise. In the warrant application, Riley also made no mention of the fact that surveillance had been conducted and yielded no evidence or even suspicion of narcotics or other criminal activity…
While it is indeed the case that where a warrant “does not report a prior conviction for a particular crime, the magistrate assumes for purposes of determining whether the government has carried its burden that no such conviction exists,” Walczyk, 496 F.3d at 161, the pertinent omission here was not merely McColley’s lack of criminal history. Rather, McColley herself was omitted entirely from the application. The issuing judge did not have the benefit of assuming that “no such conviction exist[ed]” because he was not informed that anyone other than Stink, who was the identified target of the drug investigation, resided in or maintained the first floor apartment at 396 First Street.
Riley, on the other hand, fully knew that McColley, an individual with no criminal history and no purported ties to the targets of the drug investigation, lived there with her child. Especially in the face of Riley’s inclusion of the identity of the residents for each of the other apartments and their present connection to the drug trade, the omission of McColley’s existence is all the more glaring. As drafted by Riley, with no mention of McColley, the warrant application makes it appear to the issuing magistrate that Stink was the only individual with custody and control of 396 First Street. If the residents of 396 First Street were properly identified, a reasonable issuing judge would have questioned the assertion that Stink had “custody and control” over the apartment.Not only did Riley omit McColley's very existence, but he covered up other areas where evidence lacked. Pooler attacks Riley's double-standard on submitting supporting facts in his warrant applications.
While the police may not have been required to corroborate the CI’s assertions, once they undertook this surveillance and observed no such criminal activity, this lack of corroboration should have been included in the warrant application. The materiality of this information is underscored by the common sense observation that if the surveillance had yielded evidence of criminality, that information certainly would have been included in the warrant application and deemed to have been damning. The mere fact that the outcome of the surveillance was not the one the police would have preferred does not render the information immaterial.These omissions are what cost Riley his immunity in the first place. The lower court determined these factual omissions raised sufficient Fourth Amendment questions that the county and its employee could not be granted immunity, which the defendants sought through a motion for summary judgement. This was denied and the immunity yanked, prompting the appeal to 2nd Circuit Court. This appeal has now been denied. Despite Pooler's enumeration of Riley's wrongdoing, the appeal is mainly denied on technical grounds (i.e., lack of jurisdiction).
The case is now being sent back to the lower court for a jury trial. McColley still has a chance to hold the county and Riley accountable for violating her Fourth Amendment rights.
And what did Riley's task force secure with its illicitly-obtained no-knock warrant?
The search of McColley’s home did not uncover any money, weapons, drugs, drug related paraphernalia, or any evidence of criminality of any kind. The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search.Three bills from an residence noted on the warrant application as a "stash house" and all based on the claims of a known criminal who would tell the police anything to stay out of jail and a cop who simply left out any info that would have made a no-knock warrant harder to obtain. CI's suddenly don't look all that "informative" when you depict them like any cop or DA would if they were on the stand rather than running "controlled buys" for their handlers. And the cop himself isn't looking any more trustworthy than his sources.
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Filed Under: immunity, michael riley, no knock warrant, police, rights
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Re:
Ok, my question is when is this going to bite Alexander and his ilk in the ass because on it's face they have clearly violated it repeatedly and continuously.
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Editting?
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Re: Editting?
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Lessons learnt
Would it be too much to ask for all the Judges who sign off on warrants (let alone this one) to learn to ask searching questions?
Also if the police have only the word of a drug dealer and the police have not conducted any investigation (and the results not in the warrant) to refuse to sign?
I suppose the clue is in the name. Judges are supposed to JUDGE the evidence before them, not to blindly take the police at their word. But i suppose since they do have qualified immunity, what is their incentive
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Re: Lessons learnt
I agree judges should ask more questions before issuing warrants, but here the judge would have had to read the cops' minds to even know what to ask And given how carefully the cops hid her existence to get their warrant, do you really think they would have answered truthfully?
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Re: Re: Lessons learnt
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Re: Re: Re: Re: Lessons learnt
1) Where has the information come from?
2) What is the background of the informant? (i.e. r they a drug dealer who is seeking a reduced sentence for providing information)
3) What independant steps has the PD taken to verify this information?
4) What were the results of those steps?
5) Has the PD or any other body/individual undertaken additional investigation into the target of the warrant?
6) What were the reults of that investigation?
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Lies by omission versus lies by false statement
A) We checked the ownership records and the house is:
1) a primary residence
2) a secondary residence
3) vacant
4) other (specify)
AND
B) Either:
a) We watched the house and determined that it is not a residence, but is used only for drug operations, or
b) We watched the house and observed that the following people live here:
1) Only known criminals
2) Only suspected criminals
3) Only individuals with no criminal past
4) Some mixture of the above (and specify numbers for each group).
In this case, they hid that they watched the house at all, so GP says (and I agree) that the judge should have refused to sign until the officer goes on record as stating exactly how much surveillance was conducted and what it yielded. It is possible the officer would have placed untruthful information on the warrant, given his conduct to date. However, by requiring him to choose between explicitly lying on the warrant application versus not getting a warrant, you make it substantially easier to prove after the fact that the officer was not acting in good faith. A defense attorney might be able to talk the officer out of charges over a lie by omission (though that doesn't seem to be going well for this officer so far). Talking your way out of an affidavit that swears to false facts is harder. There's also the chance that some bad officers will balk at explicitly lying to a judge because they know that will make it easy to show bad faith.
This is the "lock your doors anyway" theory, as applied to warrant applications. Yes, criminals can pick locks and yes, doors and windows can be broken by someone who wants to force entry. You still lock your doors anyway, so that there is no doubt afterward that an intruder forced his way in, because no honest person accidentally comes through your locked door.
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So much for those pesky investigations in the future
JBT Translation: "Once you've got a snitch's story, don't bother investigating before you ask for a warrant."
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I'm being picky, I know.
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Re: I'm being picky, I know.
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Qualified Immunity
In principle that's a wonderful thing. In reality lawyers, or the courts, have twisted it into a tool for protecting criminal acts by those in power. When an official, in any capacity, does anything that's clearly not within the scope of their authority and thereby abuses the public trust that official should not be immune to prosecution or to being sued in civil court. Bribes, kickbacks, favoritism, acts clearly beyond the scope of their office or authority, should all open the official to personal liability if not criminal liability.
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Re: Qualified Immunity
a helping hand
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Re: Qualified Immunity
I disagree with this. It sounds like a wonderful thing in principle. Maybe.
But why shouldn't cops, judges, attorneys, etc., have to go through the same due process as everyone else?
They make it seem like they would be inundated with frivolous law suits, but instead we have a system where there is almost no real investigation into the complaints and there is little incentive for the cops to be careful.
And, of course, we all now can see what are the long term effects of these types of protections.
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Re: Re: Qualified Immunity
Theoretically, they do.
The point of qualified immunity -- that it isn't just or fair to be able to prosecute someone for acting within the scope of their legal duties and responsibilities, is a good thing. Some jobs, like being a cop, requires actions that would expose them to liability in any other situation, and exposure to it on the job would mean they couldn't properly do their job.
The problem is the abuse of this immunity to shield people from being held accountable for abuse of power. Such abuse is not within their legal duties and responsibilities and, in theory, they are not immune from liability for them.
The real issue is the difference between theory and reality.
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Re: Re: Re: Qualified Immunity
I was just following orders, doing my job.
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bag limit
The abuses will continue until this 'reward' system is abolished.
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How are homeowners supposed to distinguish in a split-second between screaming, gun-brandishing REAL cops and screaming, gun-brandishing FAKE cops?
They can't, and since mis-identification of armed invaders can easily send a person to death row for exercising his 2nd Amendment rights, it's therefore much safer to surrender to violent criminals in the oft-chance that they might not be lying.
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Not to mention timing the break-in to times when no one would reasonably expect to get a visit.
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Hank being a corrupt asshole, bringing his kinda good-cop friend in, just starts firing at them. I imagine that it is not far-fetched from the truth than a majority of cops, whatever, department, view themselves as above the law themselves while applying Law Enforcement.
Thing is if nobody shows badges nobody knows what's going on at all, legally.
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http://www.kbtx.com/home/headlines/Man-Charged-With-Killing-Burleson-County-Deputy-No-Billed-by-G rand-Jury-243993261.html
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How did this come to light?
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Re: How did this come to light?
He did say that they "observed ass".
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One thing missing from this picture
Then, you can continue reading about successful war on drugs.
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wrong lesson
You can violate the 4th Amendment all you want, as long as you don't make a judge look bad. That was the cop's real offense. After all, the judge has to face an election.
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"Dissemble." This word does not mean what you think it means.
dis·sem·ble
/dɪˈsɛmbəl/
verb (used with object), dis·sem·bled, dis·sem·bling.
1. to give a false or misleading appearance to; conceal the truth or real nature of: to dissemble one's incompetence in business.
2. to put on the appearance of; feign: to dissemble innocence.
3. Obsolete. to let pass unnoticed; ignore.
verb (used without object), dis·sem·bled, dis·sem·bling.
4. to conceal one's true motives, thoughts, etc., by some pretense; speak or act hypocritically.
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What was the outcome of this trial?
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