Lessons from Breonna

 

Search Warrant Reform

The underlying principles of a search warrant originate within the Fourth Amendment of the Constitution. The Fourth Amendment maintains the right against unreasonable search and seizure, especially in our residence. To protect this essential Constitutional Right, the law requires at a minimum that there be sufficient probable cause and a sworn oath by an affiant to the facts and truthfulness of that probable cause.

The affiant is the law enforcement official seeking the warrant, usually a police person. A material violation of either the compulsory probable cause or the sworn integrity of its content violates the foundation of the Fourth Amendment Rights. Moreover, it excludes or invalidates the tenets of any warrant issued and the signing judges’ fiduciary creed.

The judge’s duty is procedural to assess the legality but not validate the probable cause, as they have no way of knowing the accuracy of the information that would support that probable cause. The affiant bears witness that the facts of the probable cause are true and accurate according to their personal knowledge. 

The judge then signs the search warrant on the sworn testimony of the affiant, which indemnifies the judge and places the burden squarely on the affiant to justify the warrant. Therefore, acts of willful deceit to obtain a warrant by the affiant are criminal.  

The search warrant is a two-part document. The most important part is the affidavit, which outlines the probable cause used to obtain the search warrant detailing the suspected crime or illegal activity. The search warrant precisely states the premises, person, contraband, or other criminal tools to be searched or seized along with any evidence that may confirm the suspected activity.

The warrant must be executed within 72 hours. The exceptions such as no-knock, contingent, or otherwise are described within the search warrant. A night-season search warrant must be expressly stated and permits the execution of the warrant outside of the regular allowable hours. Night season is generally considered to be between 10:00 pm to 7:00 am and is deemed to be risky and more dangerous than the execution of a typical search warrant. 

Just as a no-knock warrant language is explicitly stated, so is a night-season warrant stating the specific circumstances justifying its nighttime execution. The Taylor search warrant execution time was at approximately 12:30 am and fits into the definition of a night season search and must contain language in the affidavit allowing night season execution. The affidavit is secret and usually not disclosed.

Still, the search warrant portion, part two of the warrant, must be given to a person or left on the premises of the place to be searched, along with a search warrant inventory detailing the items seized. A search warrant return packet must be submitted to the county clerk’s office within days after executing the search warrant to conclude the process. At this time, the request for sealing the warrant is made.

In the Taylor case, certain elements can be stipulated that probable cause did exist for the warrant to be sought for Taylor’s premises. However, other aspects of the affidavit are not authenticated as factual, timely, or containing firsthand knowledge. Therefore, these elements, which were absolutely material to obtaining the search warrant, should either have been stated differently, amended, or omitted. 

Any known deviation from the truth stated within the affidavit technically is false and a violation of the oath the affiant takes, stating that they swear personally to know all probable cause to be true and accurate. Hence, this deviation invalidates the affidavit and, consequently, the search warrant due to probable cause issues. 

To satisfy the judicial integrity regarding this particular warrant, many discrepancies of perception and fact contradict practicality and the legality of the stated probable cause. Those discrepancies also prevented a clear and precise depiction of the warrant’s justification and compromised the judicial integrity of the warrant. Thus, deception, incompetence. or both is indicated by the factual inconsistencies and questionable actions in obtaining the warrant.

Clarification and resolution of the probable cause are vital to assessing the legality of the issuance of the warrant. Administratively the search warrant validation began with the investigative facts that led to obtaining the search warrant. It is where any inquiry or Grand Jury proceedings should begin to legally establish the police right to be there or even initially to obtain the warrant. You must start from the beginning.

Regarding the Postal delivery of packages of suspected drugs to Breonna Taylor’s residence, there was no confirmation to validate that claim. In fact, no packages were delivered, only letter mail was received there. Additionally, although a common practice of drug traffickers, it must be proven that the receiver opened the package. Thereby knowledge of the contents is proof they are criminally engaged. The alleged package appeared unopen according to police.

Suppose the allegations were true that multiple packages believed to contain suspected drugs had been received. In that case, conducting further investigation could have conclusively determined a pattern of Taylor’s proven participation in drug activity existed. The package could have been targeted during transport for surveillance and exigent circumstances. 

All other elements of probable cause appear to be factual assumptions, but these assumptions are not based on timely or currently valid information. Facts or further invest revising or explaining Walker’s, the new boyfriend, appearance and presence at that juncture of the investigation was lacking. The time contrasting the search warrant probable cause observations and intel relative to the discontinuation of the relationship between Taylor and the ex-boyfriend, Glover, should have been a consideration for pause. 

Walker’s presence created uncertainty and changed the dynamics of activity at Taylor’s residence. So had the alleged operation changed with the relationship change? The initial probable cause was not supported by further investigation or assessment despite Walkers’ presence. The investigation continued as if no dynamic had changed. As if business, as usual, was still being conducted between Taylor and Glover, namely that her residence was a stash house or a delivery point.

Other elements of probable cause were equally insufficient. Legal acts are not evidence of a crime unless proven to be knowingly and willingly used in the commission of a crime. Thus, cell phone and vehicle registrations in her name, while unadvisable, are not prima facia criminal. Although, some other evidential probable cause did indicate some degree of her knowledge and prior participation. 

 

Her continuation of participation for search warrant purposes must be established to be current. Otherwise, an arrest warrant or indictment for prior activity is appropriate, not a search warrant. These observations should have amended the facts avoiding the appearances and commission of any misrepresentation of the facts. Establishing current conduct revealing a continuation of Taylor’s participation despite the relationship change was needed.  

Most of the information appeared to be stale, should have been known or disregarded as not useful. The investigation process substantiates the suspicions, the participants, and the probable cause to establish the case. That investigation then sustaining the suspicions of drug trafficking, results in an affidavit and a search warrant being drawn up. It is the reason to secure the proof as the standard for probable cause.

It appears that both were drawn up by the lead detective, not a prosecutor, and then presented to a judge for approval and a signature. This practice is legal and permissible in some jurisdictions while banned in others to safeguard objectivity, completeness, and the substantiation of the required legal criterion of the probable cause. Eliminating the prosecutor’s input removes a level of objective, scrutiny, and legal knowledge.

The affidavit should contain the investigative techniques used to build the probable cause. It appears that surveillance was heavily used and presumably to some degree informants. The value of informants is not limited to information but also drug buys and the identification of suspects. Thus, the affidavit would also include whether drug arrests or drug buys were utilized and if undercover officers were used for any of the drug buys. Using undercovers solidifies the firsthand chain of testimony.

Furthermore, it needs to be disclosed if a confidential reliable informant was the source of confirming the delivered package contents as drugs. Did a CRI provide any information relative to Glover’s activities pertaining to Taylor or her premises? Without these additional sources and verifications, the search warrant criteria are extremely suspect. With this amount of uncertainty, a warrant never should have been obtained, and had the facts been known, never signed.

Administrative checks on residences, phones, vehicles, and individual’s backgrounds assist in building probable cause. In addition, multiple arrests of individuals leaving the drug house after buying drugs further establishes activity at drug houses. What were the verifiable investigative techniques detailed in the affidavit, and when?

Any packages observed leaving Taylor’s residence by Glover could only be speculated to contain drugs. Therefore, using collaboration with the Postal Inspector establishes if drugs were shipped through the mail. Any suspicious packages should have been appropriately investigated before delivery. Additionally, if Glover was observed to leave Taylor’s apartment with a package and had an active warrant or other means, it was probably prudent to apprehend Glover and the package to prove that he was receiving drugs there. 

While in transit was the most opportune time to intercept Glover. He had the least legal or Constitutional protections at that time against being arrested and searched incident to arrest. Supposing Glover was observed to go to a drug house and active trafficking observed. In that case, raiding it using exigent circumstances and securing it until a search warrant is sought afterward was legally permissible. After a fresh delivery, presumably seizing the maximum amount of drugs. 

With the postal package seemingly being the pivotal action that initiated probable cause for the search warrant issued for Taylor’s residence, it was never definitively determined to contain drugs or be recurring drug activity. At any rate, even the referred to postal package occurred nearly four weeks before the warrants’ execution, as well as recorded phone calls that implicated Taylor’s participation. Both were stale.

Considering the misrepresentation of the verification regarding the delivery of drug packages to Taylor’s residence, the unknown contents of the packages retrieved by Glover, and the time-lapse between other stated probable cause securing of a search warrant violates the principle and intent of the law lacking Constitutionality. 

It is unlikely that a judge would have signed a search warrant. It is also unlikely that a judge suspected that a night-season execution of the search warrant on a soft target was necessary. Otherwise, it is a contradiction. A prosecutor review would have surely required more clarity of probable cause and more recent justifying evidence.

While there are specific indications of Taylor’s knowledge of Glover’s activities, the evidence was somewhat circumstantially outdated and no longer accurate or subsequently proven. They found no evidence after the deadly incident to support the probable cause as current or accurate.

The implications and ramifications of the affiant’s sworn assertions of probable cause resulted in actionable infractions that would not have occurred otherwise, which ultimately resulted in Taylor’s death. The affiant committed a legal infraction in obtaining the search warrant, constituting a crime that would have resulted in no warrant being issued and definitely not being executed in the night season. 

Additionally, search warrants should have each page numbered and signed by the prosecutor drafting it and the judge issuing it on every page to prevent substitution of original authorized content. Furthermore, the prosecutor’s original copy should be submitted to the clerk’s office later reconciled with the search warrant return package to authenticate the contents as original.

Currently, only the last page of the affidavit and search warrant are signed by the judge. The prosecutor’s copy remains on their hard drive or is discarded, never reconciled with the detective’s returned search warrant.
The criteria for the search warrant or probable cause perhaps need two affiants to affirm the facts lessening the chance that two officers would tell the same lie under oath. Currently, it is an honor system of claims without proof aside from drug test results and one detective’s word.

If swat is not utilized for entry, the entry team should be cohesive, competent, skillful, and experienced. Assembly of random personnel should be avoided unless under extreme circumstances. The main reason for this is performance and tactical. An experienced entry team would never fire into a structure from outside under any circumstances or bottleneck the egress.

These are some of the main issues, revelations, and remedies concerning search warrants from probable cause to execution. Any earnest reform should address these issues if a serious undertaking of accountability is assumed. The Breonna Taylor case has many of these problems present, culminating in her death with any one element erased, she would still be alive. This is the lesson from Breonna Taylor’s incident that should not be ignored. Search warrant reform should evolve with law enforcement capabilities and criminal techniques.

 

Thurston K. Atlas

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