Court Says Tossing A Flashbang Grenade Into A Room With A Toddler Is 'Unreasonable' Police Behavior
from the law-enforcement-bloodsport dept
The Evansville (IN) Police Department has seen a drug bust go up in a cloud of flashbang smoke. A search warrant for drugs and weapons, based on an informant's tip, was executed perfectly… if you're the sort of person who believes it takes a dozen heavily-armed officers, a Lenco Bearcat, and two flashbangs to grab a suspect no one felt like arresting when he was outside alone taking out his trash. (via FourthAmendment.com)
The state appeals court decision [PDF] hinges on the deployment of a flashbang grenade into a room containing a toddler. Fortunately, in this case, the toddler was only frightened, rather than severely burned. But it was this tossed flashbang that ultimately undoes the PD's case. The evidence is suppressed and the conviction reversed.
Scattered throughout the opinion are some amazing depictions of the PD's SWAT team at work -- and how those officers seem to believe the violence of their entries during warrant service are somehow just the new normal.
Things like the following paragraph. First: some background. In some cases, it's (theoretically) more difficult for law enforcement to obtain no-knock warrants. Facts need to be asserted that show that warning the occupants of a residence in any way would most likely result in the destruction of evidence and/or an armed response. Some judges are more willing than others to hand these out, but either way, the standard warrant boilerplate can't be used.
So, here's the difference between a "knock and announce" warrant and a no-knock warrant, as deployed by the Evansville PD.
The SWAT team rode in a Lenco Bearcat that followed a patrol vehicle to the residence. At least a dozen officers were involved. Upon arrival and prior to entry, three officers and a police vehicle approached the rear of the residence and at least nine officers, most armed with assault weapons, approached the front of the residence. At 10:30 a.m., the police knocked on the residence and one of the officers announced, “Police - Search Warrant - Police - Search Warrant,” and another officer announced over a loudspeaker “Search Warrant. 314 Illinois.” State’s Exhibit 1 at 3:55-4:00. One second later, the SWAT team knocked down the door with a battering ram.
ONE SECOND. Technically, still a knock-and-announce warrant, even though the residents had been given no chance to respond.
Within the next couple of seconds, a flashbang grenade was tossed into the front room, which contained a playpen and a baby's car seat. The toddler was in the playpen.
After the flash bang grenade was deployed, Detective Gray entered the residence and picked up a nine-month old baby crying on top of blankets in a playpen just inside and “very close to the door.” Id. at 332. The room also contained a baby’s car seat and a toddler’s activity center in the line of sight of the front door. One of the officers moved the car seat with his foot to proceed further into the residence.
The officer who tossed the flashbang said he could see more than what was captured by his helmet cam, but still admitted he could not see everything in the room into which he tossed the grenade. This grenade was thrown within two seconds of the officers' announcement that they had a warrant and roughly one second after the door was breached.
Officer Taylor testified that his perception of things involved a much wider view than what the camera could see. At a time stamp of 4:01 on the video, a member of the SWAT team rammed the door open several inches with a battering ram. From an angle to the right, Officer Taylor tossed the flash bang into the house at 4:02, and it detonated at 4:04. The video at 4:02 shows only a portion of the right rear of the couch and the wood floor on which it sat. The video reveals that about five minutes after the initial entry someone stated: “Make sure you get a picture . . . are you taking a picture of that?” State’s Exhibit 1 at 8:50-8:55. This appears to be a reference to a charred stain on the floor. The person then stated: “Because the baby was in this room, but I put it right there for a reason.” Id. at 8:55-9:00.
The lower court found these tactics unreasonable on the whole and granted suppression of the evidence obtained during the search. The state argued that suppression wasn't the proper remedy and anything resulting from the "unreasonable" use of a flashbang grenade in a toddler's room was something to be addressed in a civil lawsuit.
The appeals court disagrees, finding nothing justifiable about the SWAT team's violent entry into the home.
The video shows almost no time lapse between when the door was battered in and the tossing of the flash bang. The door was barely opened when the flash bang was immediately tossed into the room, and the angle at which Officer Taylor was standing to the door did not allow him an opportunity to see what was inside the room. Indeed, Officer Taylor acknowledged that he could not see portions of the room in which the flash bang was placed. Specifically, he testified that he could see “from the couch over to the left, I can’t see the corner, the left corner inside the room and I can’t see the hallway in front of it, that’s why the flash bang goes in the threshold.”
That's the flashbang, delivered two seconds after the police announced their presence. This is only part of it. The attempt to salvage the fruits of the search with a claim that the house potentially contained dangerous criminals also receives no judicial sympathy. The state makes assertions, but cannot back them up.
The State does not point us to any other evidence indicating the criminal history of Watkins or the other occupants of the house. The record contains no evidence that law enforcement could not have safely presented the person matching Watkins’s description with the search warrant during the time that he was outside the house and before he re-entered it.
While the police may have had a valid reason to enter and search the residence, the way it carried it out destroys anything it gained from serving the warrant.
Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a nine-month old baby who was “very close” to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances.
In most courts, uttering the words "drugs" and "guns" is normally enough to excuse a full-on, military-style assault on someone's residence. Here, though, the court finds the officers were aggressive and careless, which is an extremely dangerous combination. Things could have gone so much worse, especially for the toddler caught in the middle of it, making any police assertions about prior due diligence and "cautious" deployment of flashbang grenades almost laughable. A deployment that occurs one second after a door is breached isn't "cautious." It's obscenely negligent.
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Filed Under: evansville, flashbang, no knock, reasonable, unreasonable
Reader Comments
The First Word
“Cops just like to go in cowboy hero style and they don't care if they shoot your dogs or flashbang your kids.
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"It was just a toddler, not like it was someone that matters or anything."
The state and police are more concerned with keeping the case alive than the toddler that got to enjoy having a flashbang detonated in the same room as it, to the point that they are arguing that such a tactic isn't a big deal, and certainly not enough to suppress any evidence over.
Sociopathic cowards and thugs, the lot of them.
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Re: "It was just a toddler, not like it was someone that matters or anything."
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Just 'Unreasonable'?
yea... just unreasonable... hope that is my charge if I ever toss a flashbang in a kids face.
Every Nation gets the government it deserves.
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I guess we can't all be as brilliant as you, eh?
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Cops just like to go in cowboy hero style and they don't care if they shoot your dogs or flashbang your kids.
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Response to: Anonymous Coward on Jan 13th, 2017 @ 4:22pm
AC, what are you some kinda size queen?
We only have guns that will fit in toilets in these parts!
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Re: Response to: Anonymous Coward on Jan 13th, 2017 @ 4:22pm
Basically whenever I tried getting rid of the damning evidence regarding the fibre-poor American diet, my Grandma spent another day home with the plumbing. After she had her toilet exchanged without success, I was sent to the local Holiday Inn for the remaining occasions. They probably never knew what hit them.
So I would not try to wash down any evidence in a U.S. toilet. They are not good for much beyond rabbit droppings.
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Re: Re: Response to: Anonymous Coward on Jan 13th, 2017 @ 4:22pm
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Argument. Nutshell.
That's a very succinct argument.
I can't help wondering why that's not at least a commonplace, and accepted Rule of Thumb in Law Enforcement circles.
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But it wasn't necessary. Not even slightly.
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nope. this whole thing reads like cowards.
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To protect and serve, the motto found on many patrol cars, but the protect and serve have been perverted to protecting and serving themselves, not the public who hire and pay them.
Something is wrong with this picture.
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No, it is "To protect and serve" ... the government.
They are Law Enforcement, they are to enforce the arbitrary laws of the state, to serve the state, and to protect the state FROM the people should the need arise.
No the police are not in please to protect or serve the citizens.
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I certainly understand the quandary between the logo on the cars and the actuality of behavior. That it is wrong is what is lost upon you.
The police are there to protect citizens. That this is not entombed in law is something I will continue to be flabbergasted about for the rest of my life.
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2005 SCOTUS
Castle Rock v. Gonzales
The Supreme Court ruled that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.
1989 SCOTUS
DeShaney v. Winnebago County
The court ruled there is no merit to petitioner's contention that the State's knowledge of his danger and expressions of willingness to protect him against that danger established a "special relationship" giving rise to an affirmative constitutional duty to protect. While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process [489 U.S. 189, 190] Clause, to provide adequate protection, see Estelle v. Gamble, 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.
1982 7th Circuit
Bowers v. Devito
There is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment, or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let the people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.
1981 Court of Appeals
Warren v. District of Columbia
The court stated that official police personnel and the government employing them owe no duty to victims of criminal acts and thus are not liable for a failure to provide adequate police protection unless a special relationship exists. This uniformly accepted rule rests upon the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular citizen.
1856 SCOTUS
South v. Maryland
The U.S. Supreme Court ruled that local law-enforcement had no duty to protect individuals, but only a general duty to enforce the laws.
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I do understand the difference between the motto expressed on those police cars and the reality being expressed by the courts, just because something was not codified in law. The real question is whether the citizens believe in the motto, or the lack of appropriate response by the bought and paid for legislatures. Bought and paid for by special interests, rather than constituents.
I think the citizens would rather see the motto codified in law, maybe even at the constitutional level. Then the problem becomes who the hell will enforce it?
Nice summary, btw.
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With that said; I guess the 2nd Amendment really isn't an issue anymore. With the coming SCOTUS appointments, it won't be an issue for another generation. :)
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I've got no problem with responsible gun owners. I do, however have a problem that ownership is a right and not a responsibility.
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Did you just go mental all of a sudden? I think all the amendments need to be strong. I never said we should weaken others because we need a strong 2nd.
"I do, however have a problem that ownership is a right and not a responsibility."
Luckily, our forefathers made sure it was a constitutional right.
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No such thing happens with LEO. They self investigate. Nothing to see here. Nothing changes.
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this was NOT, in any way, a military style operation. A military style operation includes a shit-tonne of surveillance, and intel gathering, something that was sorely lacking in this kind of.... clusterfuck. Let me put it THIS way. Yes the military fucks up and kills civilians, but that is usually based on intel gathered *AT THE TIME*, There seems to be absolutely NO intel gathering when they do this shit.
Cops should really stop playing wargames, or they should just join the military instead.
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I remember a SWAT assault in GA many years ago (not drugs) that was a hostage situation. An armed man with issues was holding family member(s) hostage. Instead of trying to talk the man out the local SWAT team assaulted the house without any real reconnaissance. Result, one perp dead and the entire SWAT team wiped out.
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Whinny winging cops
But cops hold their jobs voluntarily. They have a roughly one chance 0.00014 of being killed on the job in 2014 -- a spiking year for police deaths. Yet compare that to Vietnam veterans, many who were drafted, had their educations ruined, suffered more severe injuries both physical and mental, and were forced into the battle field either directly by the draft or as an alternative to the draft. They faced a death rate of 0.00666, roughly 47 times that of that of a peace officer.
Cops really have to worry about going home at night after a full day of throwing flashbang grenades at babies. The cops are in battle armor, while the children have the full strength and protection of a paper diaper.
The cops are in full fear of their lives -- the infant might reach into the waistband of the diaper, pull out a handfull of fecal matter, and throw it at the cop.
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Protect and serve.
Law enforcement used to respect the law, the rights and lives of citizens, but now they act more like thoughtless thugs that get a hard-on kicking in doors and bullying people with a complete disregard for the safety of anyone but themselves.
Remember the case in Utah, where 6 officers got shot and one died, one of the officers was interviewed by the local paper and stated that they had performed two previous "knock and talks" and the defendant refused when they asked to search. So why not do another "knock and talk" and present the warrant when the man refused a search, it's not like he was going to flush his grow lamps. But it's a lot more thrilling to kick in the door with guns drawn and if people inside get hurt it's their own fault! This time it was an officer that paid with his life and honestly for nothing!
The question isn't, Can they justify it, but rather could it have been avoided in the first place. After all the officers have all the time in the world to prepare, but the people who get their doors kicked in have 3 seconds to figure out what the hell is going on.
It's the cops that are creating a dangerous situation that is primed for violence, due to confusion and misunderstanding alone!
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Re: Protect and serve.
It makes zero sense to allow alcohol yet ban drugs. The Government is all about Pro Choice. You're murdering a unborn baby that had no choice in the matter, yet wanting to do drugs to your own body is somehow bad.
I can buy any alcohol I want, yet rarely drink. Legalizing drugs is not going to make me go out buying drugs left and right. If it did, so what.
Instead of all this crap. Legalize it and Tax it!!! All the drug gang violence goes away. The drug cartels disappear. Because all the money they make disappears.
Look at all the crime that was created when Alcohol was banned. Did the alcohol disappear? No! It was all hidden, even though you had the police, and governors, and everyone else in on it. Drinking away in these illegal establishment.
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Re: Re: Protect and serve.
i disagree when you talk about taxing it, because that seems to suggest your talking about private business being the one to distribute and sell it. And honestly i believe that would be a mistake and i believe it's one they have made with marijuana legalization. The problem with it being a private enterprise is the people selling it have an interest in increasing sales!! And the more successful they are the more likely there will be be a backlash, claiming that it increased drug addiction and worsened the problem. When actually it wasn't the legalization alone but rather the for profit design that drove that increase.
There should be a central federal distribution center that distributes to state operated stores, like some states have for liquor stores. And rather then taxing it, the price should be set in a way that the revenue funds the solution, by decreasing use, covering cost of treatment for anyone on request, educational campaigns (not refer madness), and enforcement to prevent and punish case's where it gets into the hands of children.
But absolutely no profit motive should be involved by the government or private business!!
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Always one...
You are aware you don't have to read every single article, right(and if you do, you might need to get some help for that addiction)?
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Re: Always one...
Is it still an addiction if I don't comment on every article?
What should we call this addiction? Techdirtamania? Techdirtaphobia? Better suggestions?
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1) The Flash Bang used is a form of technology that was put to use in a very questionable way and put a small child in possible danger.
2) The entire encounter was caught on video (holy shit, cops with video cams that worked?) and the judge was actually able to make a ruling based on the video.
3) The cop who threw the Flash Bang showing some sense of understanding (perhaps remorse) and try to use the video as evidence to make sure they get it on that video that the Flash Bang was not right next to the baby.
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Ineffective. Just hack the president's brain. And hack the elections so as to minimize the brain you need to hack.
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Court Says Tossing A Flashbang Grenade Into A Room With A Toddler Is 'Unreasonable' Police Behavior
Public replies: No fucking shit.
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