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

Creating A Buzz

 

 

Grand Jury Proposal

The Totality of the Facts

The entire Breonna Taylor case from the beginning has been cloaked in secrecy with limited information disseminated. I believe that this has not been done by accident. While the Grand Jury proceedings have shed some light on the incidents of that night, it has also cast much doubt on the grand jury.

Unfortunately, full disclosure and complete access to the facts may never be obtained, but there should be a release of information that satisfies the many unanswered questions that exist. It should also cover questions about the grand jury process that manipulated the outcome.

You must ask the right questions for a correct answer to create transparency and shed the appropriate insight into the case. These questions and answers should then be presented to another Grand Jury in their entirety so that an unbiased informed decision can be made for possible charges and indictments, if any. Thus, following the trail of truth wherever it leads and whomever it implicates.

The Grand Jury proceedings by law are kept secret, as well as the identity of the Grand Jurors. These are the first two flaws of the proceedings, notwithstanding the constitutional traditions which permit manipulation of abuses and loopholes. The criteria of member selection can influence the decision by a predisposition of perspectives slanted toward a particular outcome affecting the decision maker’s interpretation of the evidence.

Members should maintain anonymity redacted from the public record and view, but member protocol needs adjusting under these exceptional circumstances. The criteria for member selection may very well be questionable when these exceptional circumstances arise. Maybe random selection, maybe not, but the point is there is no transparency conducive to understanding the process.

Secondly, if the person alleged in the proceedings is a public servant of public record acting in a public capacity, why are their proceedings private in contrast to their public service. It would stand to reason that secrecy is their right if operating privately but not in a public capacity. It is a determination relative to their public actions, not a private capacity occurrence.

It is a mixture of public and private concerns governed by strictly private rights as a citizen when the actions were not of a private citizen nature but a public employee. Standards for public employees distinguish acts committed as an employee or elected official as violations of public expectations. If the offense is public, should the determination not also be public to promote transparency and fairness?

Make the presentation of evidence public but not in its entirety, only satisfying the level of charges sought. Another alternative to protecting the integrity of the secrecy of the proceedings is to have opposing interests present or ensure that an impartial conveyance of the facts is conducted. The proceedings could then remain private but balanced in their presentation.

Whatever alteration must ensure the totality of the facts and possible charges be presented to avoid steering or to restrict the grand jury process. The saying goes, a grand jury will indict a ham sandwich meaning the outcome can be manipulated beyond reason, but the opposite is also true. It can be restricted beyond reason by the limitations of the information or charges submitted. This phase is where the abuses and loopholes exist.

It has the overwhelming potential to distort the purpose and outcome by tampering with the intent necessitating transparency. Nevertheless, transparency is required under these extraordinary circumstances of mistrust, and the skepticism created even sometimes among the members of the Grand Jury themselves. The demand for procedural disclosure has raised suspicions about the credibility of the process, evidence, and charges presented.

The Grand Jury is tasked with a no bill or true bill determination but can only consider the charges put before them. Meaning an indictment is either denied or upheld considering only the evidence and the suggested changes presented to them. They have no power to suggest charges or have any knowledgeable requirements of the nuances of the law.

They rely on the prosecutor’s presentation of the facts and the changes suggested. They cannot consider charges that have not been presented to them. Facts unknown to the Grand Jury, in essence, restrict their considerations to only the choices available to them. So, the facts not presented have probably more impact on the decision to indict or not than what is presented.

With that said, to avoid any impropriety and maintain impartiality, all evidence and witnesses should be presented to the Grand Jury. Then the culmination of that information made public or arbitrated as an Amicus Brief with only the names of the individuals redacted for their protection and anonymity if they are not public servants.

This will preserve the transparent disclosure of the facts and the value of the evidence presented without significantly impacting the integrity and procedures of the Grand Jury.

To highlight these procedural principles or lack of, altering a judicial determination while claiming impartiality in submitting the complete facts warranting no charges, consider their practical impact. With an understanding of the possible methods used, it becomes evident where and how undue influence and tacit persuasions can go undetected.

A city settlement had been reached in the Taylor case prior to the grand jury proceedings revealing some level of acceptance, if not an admission of guilt or liability. The settlement alone indicates that the city’s position was much more fragile and dubious than errant shots into an adjacent apartment which caused no bodily harm. To prevent the facts from being vigorously pursued, establishing uncontestable culpability, this is the first maneuver.

The settlement agreement has probably restricted some of the family’s rights to legally implement key principles such as duces tecum or discovery to reveal elements pertinent to the events of that night. Thus, surmising it would behoove the city to enter into a settlement before the legal wrangling began, only if it admitted no guilt, regulated disclosure, and restricted recourse.

The settlement would certainly restrict any recourse or some of the family’s further exercise of legal rights about the case. The optics and practicality appear peculiar, and the settlement obscured the State Attorney General’s obligation for full disclosure to address the family’s interest.

Public outrage was then the only recourse remaining for accountability considering the facts not presented to the grand jury. The outrage has subsided as they knew it would despite no full disclosure or honoring of legal request for evidence still not released a year later.

Furthermore, a settlement was not negotiated with the victims of the grand jury indicted action signifying undisputable criminal negligence against an innocent family in the adjacent dwelling. Conversely, the family of Breonna Taylor, where no indictment was returned in connection with her death, was given a settlement.

It seems strange that a so-called totally justifiable shooting would warrant a twelve-million-dollar settlement, and the victims of the unquestionable reckless endangerment would not result in settlement of any known dollar amount thus far.

That said, to further examine the events of that night, much more remains to be scrutinized using deductive reasoning of the evidence parameters not presented to the grand jury before they could reach a decision.

Presenting the evidence with the spectrum of charges applicable and letting the grand jury make a legal determination on what does or does not support an indictment would secure an objective assessment. After all, convening the grand jury to provide an objective assessment and factual determination was the objective.

To make an objective assessment, it cannot be a limited or subjective presentation of the facts. The totality of evidence to be fully presented and considered should include the search warrant process and probable cause, the execution of the search warrant and critical incident review, and all witness testimony or statements taken, including fellow officers.

In particular, the swat team personnel criticized the shots fired into the apartment, striking Taylor as an unconfirmed target and suppressive fire.

Further consideration must include a comprehensive review of all evidence, any incriminatory or exculpatory indiscretions of significance, and any revelations from subsequent investigations.

In addition, they must be reviewed for any impact on impartiality or transparency on Grand Jury revelations for any reasonable charges as a procedural matter. Thus, as a projection of consequences since material facts were misrepresented, which would have prevented obtaining a search warrant, all actions resulting are attributed to that lie.

Consequently, no search warrant would or should have been granted or sought. No search warrant, no murder since there was no legal right to be there. Since a lie leads to the critical incident, why would not the liar be held criminally accountable for every action the lie set in motion?

Similar to a getaway driver, planner, or lookout for a criminal act. This principle is applied to civilians universally, then why not the police, especially when a murder was the result. It was not presented to the grand jury, but the city fired him for it.

Undeniably, in addition to the State Attorney General (AG) or prosecutor suggesting charges, there needs to be an agreed-upon individual acting in the capacity of Amicus Curiae to assure an impartial and fair interpretation of the evidence presented and application of the law. That would ensure that all interests are equally represented fairly and objectively to satisfy any accusations of impropriety or coverup.

To ignore the impact of the crime committed by lying under oath as the affiant securing the search warrant, which resulted in the firing but not prosecution for the lie or murder, is reprehensible. Don’t look any further for a colossal abuse of the grand jury process by omitting facts and evidence. It was known at the time before the grand jury was seated.

The complete and thorough examination of the evidence should be of paramount interest to all parties for a just resolution. Therefore, when assessing actions of that night, any police action relying on pertinent information must be known before or at the time of the occurrence or incident in real-time, not after the fact. The lie was known.

Subsequent information ascertained by further investigation or implication only frames the structure for support or rebuttal by which the circumstances of that night can be evaluated.

It is not sufficient to cite traditional grand jury protocol protections when the AG has been exposed to have practiced deceit by commission and omission. Instead, the process must be presented and released for objective examination and understanding since exposing the previous secretive process as a farce and wholly inadequate.

The process cannot be suborned to conceal, deny, or mislead accountability for malfeasance or misfeasance. The integrity of the Grand Jury system must supersede and resist the impulses to disguise the guilt of law enforcement with equal enthusiasm as it applies to imposing it on others.

The purpose of an exhaustive probe is not to create doubt but to establish clarity and transparency of application and interpretation of the facts. There is a fiduciary duty to present the facts in their entirety. Total satisfaction for all is not realistic or attainable, but fairness, complete presentation, and honest determination should be.

Conceding that some partialities are not factually based and governed by the emotions of opposing beliefs, no matter the outcome, there will remain a contention of disputing opinions.

However, when proceedings are properly conducted in full consideration of the facts conveyed unbiasedly and transparently, a greater level of satisfaction is obtained whomever the outcome disappoints. The total and indisputable facts must be revealed and judged accordingly, letting blame fall where it may.

The Taylor case illustrated some methods of abuse when manipulating the system, but there are other methods involving circumvention by avoiding the process. Any homicide should be presented to the grand jury even if an arrest is not made.

This provides transparency and clearance of wrongdoing. The circumstances should be submitted as a matter of facts, not presentation, then the charges resulting from the actions can be determined fairly. The Ahmaud Aubrey case best illustrates the circumvention of the law by not submitting the facts to a grand jury.

Several refusals occurred before exposure of the facts necessitated multiple arrests and indictments for his murder. Federal charges were also brought. So how could there be several determinations that there was no crime unless it was to conceal the facts and the participant’s guilt?

The mere submission of the facts to a grand jury was the difference between injustice and justice. This cast doubt on the motive and judgment of the prosecutor and law enforcement, who initially refused to arrest or indict, remiss in honoring the facts. The errant determination rested in their hands, resulting in a coverup.

This is a common occurrence to pretend no law was broken and no crime was committed. Thus, the appearance of impartiality masqueraded as a thorough investigation while biasedly corrupted. It amounts to a dereliction of duty exceeding bad judgment and should be examined for any criminality.

If these decisions are unduly influenced, that would be a crime. However, if this crime was in furtherance of concealment of another’s crime, they should share their fate since they decided to share their concealment.

To not present the case to the grand jury at the minimum is either law enforcement misconduct or prosecutorial misconduct, if not both. An expanded system of review or panel of review would remedy these biases of judgment and injustice.

It should also trigger a personnel review when the misjudgment is this blatant. If criminal intent is not proven, it most certainly sustains disciplinary actions. The system must have deterrents and enforcement of violations to assure its integrity.

Those entrusted to uphold the integrity and intent of the law violate this by deceptive means or concealment of material facts. In that case, they should be exposed and judged harshly, perhaps by having their facts presented to a grand jury.

These grand jury proposals will address some abuses, loopholes, and circumventions to no longer be allowed to be exploited under the pretense of justice. Corrupting the process is corrupting justice and promoting violations. Grand jury reform for public employees should reflect their capacity as a servant to the public, not a private citizen. Furthermore, automatic grand jury review of instances similar to the Aubrey case has to be mandatory. 

 

Thurston K. Atlas

Creating A Buzz