Judge's Ruling In Google Privacy Case Might Also Make It Possible To Sue UK's GCHQ

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

Tue, Feb 4th 2014 8:54pm — Tim Cushing

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

42 Comments

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John Snape (profile), 4 Feb 2014 @ 9:18pm

18 U.S.C. � 242 can be a bitch when it bites you in the behind...
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eaving (profile), 4 Feb 2014 @ 9:53pm

Editting?
Generally love the quality of the posts here but could use a hair more editing on this one before the late evening upload. In the fifth paragraph I know you want 'as well as' rather than 'ass well as' and I am pretty certain you want the judge taking apart Riley's lies with disassembles rather than further obscuring it by dissembling his lies.
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Anonymous Coward, 4 Feb 2014 @ 10:24pm

Somebody was gunning for a promotion, but ended up in jail instead. Moral of the story, never trust a junkie.
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Anonymous Coward, 4 Feb 2014 @ 10:35pm

They never learn.
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Anonymous Coward, 4 Feb 2014 @ 10:37pm

They never learn.
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peter, 5 Feb 2014 @ 12:41am

Lessons learnt
And what sanctions for the Judge who signed the warrant?
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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Manabi (profile), 5 Feb 2014 @ 12:55am

Re: Lessons learnt
Did you read the article? The cops hid all that information from the judge. To the judge it appeared that her apartment was controlled by the drug dealer Stink. Especially since all the other apartments had resident information and details about surveillance included.

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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Anonymous Coward, 5 Feb 2014 @ 3:07am

TERROR-rists
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Carl "Bear" Bussjaeger (profile), 5 Feb 2014 @ 3:29am

So much for those pesky investigations in the future
"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."

JBT Translation: "Once you've got a snitch's story, don't bother investigating before you ask for a warrant."
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Ninja (profile), 5 Feb 2014 @ 4:47am

That's just the more pronounced and outrageous face of the problem. What we have here is general unwillingness from law enforcement to do the investigative work and follow judicial steps (due process!) which is magnified by politicians grandstanding on whatever and passing laws that place the liability elsewhere and let the real criminals run free. A glaring example is the child porn site blockades, domain seizures, mass surveillance etc. Hopefully it will start to bit them back. Hard.
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STJ, 5 Feb 2014 @ 4:50am

I'm being picky, I know.
"ass well as" I think you don't know what you are typing.
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peter, 5 Feb 2014 @ 4:53am

Re: Re: Lessons learnt
So in this instance the judge did ask searching questions about surveillance, checks on occupiers, additional evidence etc etc did he? Funny but i missed that when i read the article again. can you point it out to me please?
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Anonymous Coward, 5 Feb 2014 @ 5:01am

Informants are such a reliable source of information, who needs corroboration?
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Bobert, 5 Feb 2014 @ 5:32am

Qualified Immunity
I don't know, and I'm too lazy to check at this time of morning, but I assume that qualified immunity is pretty much the same thing that lets public officials not be sued for carrying out their duties?

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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Anonymous Coward, 5 Feb 2014 @ 6:09am

Re: Qualified Immunity
http://www.law.cornell.edu/wex/qualified_immunity

a helping hand
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Anonymous Coward, 5 Feb 2014 @ 6:09am

bag limit
Sadly the system encourages dirty cops, because by breaking the law, lying to judges, and violating people's rights, they can potentially get more arrests and more convictions -- and hence more promotions.

The abuses will continue until this 'reward' system is abolished.
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Anonymous Coward, 5 Feb 2014 @ 6:31am

Lies by omission versus lies by false statement
Did you read the article? The cops hid all that information from the judge.
GP was asserting that the judge should categorically refuse to sign the warrant unless it states:

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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Anonymous Coward, 5 Feb 2014 @ 6:34am

Re: Qualified Immunity
In principle that's a wonderful thing.

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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Pixelation, 5 Feb 2014 @ 7:26am

Re: I'm being picky, I know.
I think the officer got in trouble because he was observing "ass well".
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Anonymous Coward, 5 Feb 2014 @ 7:35am

I'm more concerned about that guy in Texas facing capital punishment for only doing exactly as he should have done to hostile home invaders.
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scotts13 (profile), 5 Feb 2014 @ 7:49am

How did this come to light?
Frankly, I've always assumed warrants are pretty much rubber-stamped. To do it right might be hard, and would take a while - and so many are needed. Now, how did THIS one, out of the probable thousands of sketchy search warrants, come under the spotlight? Did they barge in on the "wrong" woman, meaning someone who knew the law and was willing to challenge it? Or was it something else? Just that her posterior was partially exposed?
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Anonymous Coward, 5 Feb 2014 @ 7:56am

Re:
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,... shall be fined under this title or imprisoned not more than one year, or both..."

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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Anonymous Coward, 5 Feb 2014 @ 8:01am

One thing missing from this picture
Troy is a large city on east side of Hudson river, opposing Albany on the west (capital of NY state). 3 hours north of NYC. The region was a century ago one of the most indstralized places on the planet. Factories now in China, perhaps half of residents are unempolyed, and maybe 2/3 is on public assistance this way or another.

Then, you can continue reading about successful war on drugs.
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Anonymous Coward, 5 Feb 2014 @ 8:04am

Re: Re: Re: Lessons learnt
I think that's a little premature and unfair. To determine if appropriate questions weren't asked by the judge, we would really need to see the request for the warrant and how the case for probable cause was actually presented the context of which would be important.
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That One Guy (profile), 5 Feb 2014 @ 8:04am

Re:
Well see, when you've got armed people breaking into your house in the middle of the night, you're supposed to wait until they pull either a badge or a gun before responding, it's only common courtesy you know. And sure, you, your family, or your pets might take a few rounds by waiting, but that's just the cost of manners. /s
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Anonymous Coward, 5 Feb 2014 @ 8:11am

Re: Editting?
Maybe the officers doing surveillance HAD "observed ass." They were watching a lady's apartment after all.
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Anonymous Coward, 5 Feb 2014 @ 8:14am

Re: Re: I'm being picky, I know.
Perhaps he was trained by the TSA.
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zip, 5 Feb 2014 @ 8:51am

Re: Re:
But in most armed (non-police) home invasions, the robbers --quite naturally-- will claim to be cops. Just like the OJ Simpson posse that stormed a Vegas hotel room.

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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Anon, 5 Feb 2014 @ 9:12am

wrong lesson
The lesson police will derive from this will be:
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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John Fenderson (profile), 5 Feb 2014 @ 9:20am

Re: Re: Qualified Immunity
"But why shouldn't cops, judges, attorneys, etc., have to go through the same due process as everyone else?"

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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Anonymous Coward, 5 Feb 2014 @ 9:27am

Re: Re: Re:
While a badge and a uniform are not infallible ways of identification, it would make it a bit harder to confuse someone than wearing all black and face masks.

Not to mention timing the break-in to times when no one would reasonably expect to get a visit.
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Anonymous Coward, 5 Feb 2014 @ 10:41am

Re: How did this come to light?
"Just that her posterior was partially exposed?"

He did say that they "observed ass".
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Anonymous Coward, 5 Feb 2014 @ 12:10pm

Re: Re: Re:
Haven't you seen the last episodes of Breaking Bad ? There was a big lesson about American culture there. The Neo-Nazi gang totally ask Hank and Gomez to identify themselves / show their badges and that they will surrender.

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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Eldakka (profile), 5 Feb 2014 @ 6:24pm

Re: Re: Re: Re: Lessons learnt
Judges should alwasy ask the following questions:

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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zip, 5 Feb 2014 @ 7:53pm

Re: Re: Re: Re:
Police rarely even wear *proper* police uniforms anymore -- even when they're not busting down doors in the middle of the night. It seems that about the only people dressed like cops these days are security guards, but even they are slowly 'going casual' more and more.
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Anonsters, 5 Feb 2014 @ 9:03pm

"Judge Pooler dissembles exactly how Riley lied by omission to obtain this warrant."

"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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btrussell (profile), 6 Feb 2014 @ 3:38am

Re: Re: Editting?
Why else wouldn't they let her cover herself?
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btrussell (profile), 6 Feb 2014 @ 3:44am

Re: Re: Re: Qualified Immunity
"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.'

I was just following orders, doing my job.
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Anonymous Coward, 6 Feb 2014 @ 4:39am

Re: Re: Re: Re: Re:
Yeah, that's your problem indeed. Cops are massively easy to recognize in .ca. Only inspectors usually dress casual.
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Anonymous Coward, 8 Feb 2014 @ 3:22pm

Re:
The guy in Texas was no-billed by a grand jury, a couple days after the above article was written. He will however be charged with drug dealing and possessing a firearm while doing so.

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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Traindriver, 13 Feb 2014 @ 5:44pm

I hope and pray they hang this cop by his nuts.
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Anonymous Coward, 17 Jul 2015 @ 12:47am

What was the outcome of this trial?
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