‘Search Warrants Rot Law Enforcement’: Paper

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Photo by Logan Weaver via Unsplash.

When 26-year-old Breonna Taylor, a Black medical worker, was shot and killed by Louisville police officers in March 2020 during a botched raid on her apartment, the country was collectively “traumatized” — particularly marginalized communities. While her death is an absolute tragedy, a law professor  at the University of Kentucky writes that her death “transcends the narrative of bad-apple cops” and highlights the broken system backing search warrants, according to a forthcoming Boston University Law Review paper.

“Something rots in law enforcement,” writes Blanche Cook, the paper’s author. “And it’s the search warrant.”

“When police rammed the door of Breonna Taylor’s home and shot her six times in a hail of thirty-two bullets, they lacked legal justification for being there,” Blanche Cook, the paper’s author, details.

“The affidavit supporting the warrant was perjurious, stale, vague, and lacking in particularity.”

With that begins said, Cook explains that the point of her paper is less about Breonna’s death, and more about the legal circumstances that facilitated her killing. Too often, police officers lie to obtain warrants while magistrates “rubber stamp” facially defective warrants, failing individuals, Cook adds.

All of this can be traced back to the Supreme Court’s legal doctrine that created the conditions for this botched search warrant execution.

A Decaying Search Warrant System

“Taylor’s killing exposed systemic problems in law enforcement that have fueled a public outcry for answers, explanations, transparency, reform, reparations, and a reconstitution of policing,” Cook begins, adding that in Taylor’s case, she wasn’t the focus of the investigation that led officers to her address.

Instead, officers were looking for Jamarcus Glover, someone Taylor had dated in the past, but had ended their relationship before law enforcement secured the search warrant.

In their investigation to Glover, Taylor’s address was added to the warrant list, along with four other warrant addresses — but only because an investigator swore that he “verified” through a United States Postal Inspector that Glover was receiving packages to Taylor’s home, later discovered to have been a lie, it was this false claim of “suspicious packages” that allowed the warrant to be cleared.

Moreover, as part of the War on Drugs, the Supreme Court has given law enforcement the weapons necessary to declare war on certain communities, namely areas demarcated or branded as “high crime areas” — and thus allow for easier search warrant approval. This is the case for Taylor’s neighborhood, Cook explains.

The warrant itself would not survive a Franks Hearing, meaning it would be determined that an officer lied to obtain the warrant, or meet the Standard of Probable Cause. Cook also explains that it lacked Nexus Evidence, or a link between the evidence and location, that connected Taylor to the drug activity — all of which culminates to the fact that the search warrant executed on Taylor’s apartment shouldn’t have been executed in the first place.

Another element in this case is the no-knock warrant, which contributed to Breonna’s death. The investigator applying for the warrants used a boilerplate message requesting a no-knock entry saying that the drug traffickers had a history of attempt to destroy evidence — but this wasn’t true of Taylor or her circumstance.

“She was not rumored to be a drug dealer. She had no participated in any drug exchange. She had no criminal history,” Cook detailed, noting that there was no reason for the warrant on her location to be approved as a no-knock execution.

Instead, she was subjected to the most dangerous aspects of a SWAT raid, and while law enforcement claim they announced repeatedly before breaking down her door, it’s contested by sixteen of her neighbors.

Unfortunately, Taylor’s story is one of thousands that take place in America, and the slippery slope of these warrants result in a general lack of police accountability when things go wrong — and end deadly.

Lack of Police Accountability

In the Taylor case, the Louisville police officers were not held accountable for their actions, as Cook details that affidavit has never been provided to or explained to the public, as well as the results of an independent probe have never seen daylight.

Apparently, Cook also adds that no video record of the botched raid exists, considering Attorney General Daniel Cameron says that most officers were not wearing their body cameras, and those that had them, had them turned off.

“Video provides much-needed proof for suppression hearings and civil damages claims,” Cook writes. “The absence of a video record is a severe impediment to truth-seeking that must be fully explained to the public.”

The police also had time to “craft narratives of innocence,” Cook explains, noting that by the time statements were provided, police had the ability to work together and with an attorney to craft responses while potentially twisting the truth. Some of this can be seen in the attempt to cast Taylor’s surviving boyfriend as the villain, claiming that “he was reaching for his waistband.”

Without video footage, everything becomes someone’s word against another.

Solutions to Search Warrant Problems

On September 15, 2020, the city of Louisville agreed to pay Taylor’s family $12 million and to reform police practices. While many are hopeful that it’s a step in the right reform direction, at the end of the day, Taylor lost her life because of the system, and that injustice must lend itself to actional solutions to policing problems, Cook writes.

To begin, Cook advocates for the creation of multiple layers of independent reviews of police conduct. This way, combining transparency and real-time reviews, meaningful change can be made.

Blanche Cook, photo courtesy Wayne State University.

Moreover, Cook suggests that the Exclusionary Rule, which currently bars constitutionally violative evidence from trial, should be applied to unconstitutional warrants because currently, any materials cannot be collected to deliberate police misconduct.

“It is imperative that evidence obtained through materially false statements in warrants be rejected regardless of the mens rea of the applicant,” Cook explained.

She also suggests requiring higher justification for no-kick entry warrants. In Taylor’s case, the warrant application justified this type of intrusion into her home, only because the allowance was lumped together with five warrants for other people. This, Cook details, isn’t just.

Lastly, Cook recommends that there be a data collection process on dynamic entries, and make all the information available to the public. She also advocates for the use of independent review boards to monitor judges and their decisions in executing search warrants.

“Deliberate policy decisions facilitated the killing of Breonna Taylor and policy decisions can prevent the next Breonna Taylor,” Cook concluded. “We could do a lot more to avoid more Breonna Taylors if that is what we desire to do.”

Blanche Cook is the Robert E. Harding Jr. Associate Professor of Law at the University of Kentucky College of Law where she teaches criminal law and procedure, as well as trial advocacy and critical race theory. Before joining the University, she was a tenured Associate Professor at Wayne State University Law School in Detroit, Michigan.

 The forthcoming paper can be accessed here.

Andrea Cipriano is associate editor of The Crime Report.

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